Chapter 1 IDAHO COMPETITION ACT

Sec.

§ 48-101. Short title.

This act shall be known and may be cited as the “Idaho Competition Act.”

History.

I.C.,§ 48-101, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-101, which comprised 1911, ch. 215, § 1, p. 688; reen. C.L. 107:1; C.S., § 2531; I.C.A.,§ 47-101, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Compiler’s Notes.

The term “this act” refers to S.L. 2000, Chapter 148, which is compiled as§§ 18-7803 and 48-101 to 48-118. The reference probably should be to “this chapter,” being chapter 1, title 48, Idaho Code.

CASE NOTES

Retroactivity.

Retroactive application of a statute is not allowed unless there is clear legislative intent to that effect; the language of the Idaho Competition Act indicates that it does not apply retroactively to permit the recovery of damages based upon conduct that occurred before its effective date. State v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 106 P.3d 428 (2005).

Decisions Under Prior Law
Application.

This section addresses only conspiracies or other combinations in restraint of trade. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Because this section specifically addresses the subject of attorney fees in cases brought under the antitrust law, it was more specific than§ 12-120(3), and was controlling in an action arising from a reimbursement agreement regarding sale of prescription drugs to health insurer’s subscribers. K. Hefner, Inc. v. Caremark, Inc., 128 Idaho 726, 918 P.2d 595 (1996).

Attorney Fees.

The peculiar nature of a legal malpractice action requires the action to proceed as a suit within a suit; therefore, an award of attorney fees pursuant to the underlying antitrust action constitutes a part of the measure of damages in the malpractice case and must be submitted as part of the proof of damages under the antitrust claim; it is not sufficient to file a post-trial affidavit of costs and fees under Idaho R. Civ. P. 54. Fitzgerald v. Walker, 121 Idaho 589, 826 P.2d 1301 (1992).

Concerted Action.

Concerted action is not necessary to have a violation of this section. Twin Falls Farm & City Dist., Inc. v. D & B Supply Co., Inc., 96 Idaho 351, 528 P.2d 1286 (1974).

Conspiracy.

Employer and his employees were held not guilty of conspiracy to drive competitor out of business, since acts of employees were, in effect, acts of employer. Udelavitz v. Idaho Junk House, 46 Idaho 441, 268 P. 15 (1928).

An internal division of a corporation is incapable of conspiring with that corporation, since they are one and the same, and the plurality of actors required for conspiracy is absent. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Since a conspiracy requires the agreement of at least two individuals, a finding of conspiracy against one defendant cannot be upheld where the other alleged conspirators are tried and absolved of participation in the same proceeding. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Power supplier’s antitrust claims failed because a conspiracy among power company, its officers, directors, and agents did not provide the predicate for a successful antitrust claim under the statutes of Idaho. Afton Energy, Inc. v. Idaho Power Co., 122 Idaho 333, 834 P.2d 850 (1992). The federal courts have placed a “gloss” on the contract element of the federal statute requiring also that there be a “unity of purpose” between the contracting parties to violate the antitrust laws. This element is also a requirement of this section. K. Hefner, Inc. v. Caremark, Inc., 128 Idaho 726, 918 P.2d 595 (1996).

Construction of Federal Antitrust Act.

A federal district court was not required, in determining whether the Idaho statute applied to municipal corporations, to follow construction given to the federal antitrust act by the United States supreme court, on the ground that the state legislature, in enacting the statute, intended to adopt the construction previously given the federal act by the United States supreme court. Wilcox v. City of Idaho Falls, 23 F. Supp. 626 (D. Idaho 1938).

Contract Illegal under Federal Law.

Contract concerning exhibition of motion picture films, which was illegal under Sherman Antitrust Act, 15 U.S.C.S. § 1 et seq., could not be enforced in action for damages. Fox Film Corp. v. Tri-State Theatres, 51 Idaho 439, 6 P.2d 135 (1931).

Deceptive Use of Names.

Where a complaint alleged that the use of the name “United American Benefit Association, Inc.” by the defendant was deceptively similar to the name “American Home Benefit Association, Inc.” used by the plaintiff, and alleged that the general public was misled and deceived, and that much embarrassment and inconvenience had been suffered by the plaintiff as a result of the similarity of the names, the complaint was not demurrable on the ground that the plaintiff could not claim exclusive right to the use of the word “American” for the reason that it was broadly geographical. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942).

The specific intent and dangerous probability requirements of attempted monopolization are fulfilled when it is shown that (1) an entity possesses monopoly power, (2) that monopoly power has been employed so that an actual restraint on trade has been accomplished, and (3) the restraint has been obtained in an additional market within the distribution chain of the relevant product. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Elements.

The basic elements necessary to prove the charge of attempted monopoly under this section are: (1) a specific intent by the defendant to monopolize, and (2) overt acts by the defendant which create a dangerous probability that the intended monopoly will be achieved. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

The specific intent and dangerous probability requirements of attempted monopolization are fulfilled when it is shown that (1) an entity possesses monopoly power, (2) that monopoly power has been employed so that an actual restraint on trade has been accomplished, and (3) the restraint has been obtained in an additional market within the distribution chain of the relevant product. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

There are three essential elements in every private antitrust action: (1) a violation of the antitrust law, (2) direct injury to the plaintiff from such violations, and (3) damages sustained by the plaintiff. Therefore, a finding of a violation by itself does not result in liability. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982). Injury arising out of a defendant’s antitrust violation is an element of proof in establishing civil liability under this section, since injury to a person’s business is essential to the cause of action. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

— Control of Market.

There is no set degree of percentage of market power which must be possessed in order for a defendant to be dangerously close to achieving a monopoly. Rather, in order to determine whether there is a dangerous probability that a monopoly will be achieved, the extent of market power must be evaluated in conjunction with prevailing market conditions, as well as the business policies and performance of the defendant. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Where even liberally construing the record, defendant could have had not more than 24 percent of the insulation market, and in light of the highly competitive nature of the market involved, the claim of attempted monopoly had to fail. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

— Intent.

Generally, since there is rarely any direct evidence of specific intent to monopolize, its existence may be inferred from anticompetitive conduct of the defendant. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

A finding that a defendant has engaged in a particular predatory or illegal act, such as selling below cost, is not the equivalent of finding specific intent, but is merely a basis from which such intent may be inferred; and isolated or occasional instances of selling below cost, while predatory or illegal in nature, do not necessarily indicate a specific intent to monopolize. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

The existence of specific intent to monopolize must be determined by weighing all of the circumstances in the particular case, including the nature of the conduct, its consistency and duration, the conditions of the market, and characteristics of the defendant. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Exclusive Agency Contracts.

Contract creating an exclusive agency for the sale on commission of a given commodity in a specific territory and binding the agent not to sell the goods of any other manufacturers was not in violation of antitrust law. Independent Gas & Oil Co. v. T.B. Smith Co., 51 Idaho 710, 10 P.2d 317 (1932).

Fair Market Value.

Market value has been defined as the price that a reasonably prudent purchaser would pay for the relevant product under the market conditions prevailing at the period of time in question and fair market value may be less than cost. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Geographical Terms.
Illegal Practices.

Geographical terms and words descriptive of character, quality, or places of manufacture or of sale of articles can not be monopolized as trade-marks. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942). Illegal Practices.

Neither buying in volume nor selling back at a profit is of itself illegal or inherently predatory. Such practices may become illegal or predatory only when used as methods of achieving a corner on a market, i.e., obtaining extensive control over the supply of a product so that the product’s price might be artificially set in a manner most profitable to the controlling party, and a determination that such control or pending control exists cannot be made without reference to both the quantity of supply of the particular product and the defendant’s share of control over that supply. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

In General.

This chapter is patterned after the federal Sherman Antitrust Act, 15 U.S.C.S. § 1 et seq.; while federal decisions are not binding in interpreting and applying these sections, they do offer persuasive guidance. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Insufficient Evidence.

Where the plaintiff makers of promissory notes to the defendant oil company failed to prove by a preponderance of the evidence that the agreement between the parties, whereby the makers of the notes would provide their land to build a gas station and sell the oil company’s gasoline products, was an illegal tying arrangement or that the agreement substantially lessened competition or tended to create a monopoly in favor of the oil company, the Idaho Antitrust Law and the Idaho Anti-Price Discrimination Act were not applicable. Pollard Oil Co. v. Christensen, 103 Idaho 110, 645 P.2d 344 (1982).

Labor Combinations.

Labor is not commodity or article of commerce within purview of statutes. Robison v. Hotel & Restaurant Employees Local No. 782, 35 Idaho 418, 207 P. 132 (1922).

Lawful strike is not prevented by this section. Robison v. Hotel & Restaurant Employees Local No. 782, 35 Idaho 418, 207 P. 132 (1922).

This section raised no justiciable issue of state law when applied to action by independent contractors against labor organization for damages and injunctive relief from picketing. Simpkins v. Southwestern Idaho Painters Dist. Council No. 57, 95 Idaho 165, 505 P.2d 313 (1973).

Municipal Corporations.

Municipal corporations are not amenable to this chapter. Wilcox v. City of Idaho Falls, 23 F. Supp. 626 (D. Idaho 1938); Denman v. City of Idaho Falls, 51 Idaho 118, 4 P.2d 361 (1931).

The Idaho Antitrust Law does not apply to municipal corporations, and hence a holder of notes and bonds of a gas company, whose business was allegedly ruined by the fact that the city operated a hydro-electric plant and monopolized the gas company’s business, could not maintain an action against the city for damages resulting to the holder from the city’s acts. Wilcox v. City of Idaho Falls, 23 F. Supp. 626 (D. Idaho 1938). See however, Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S. Ct. 65, 51 L. Ed. 241 (1906).

Necessary Allegations.

In an action under the antitrust law of Idaho, it was necessary that plaintiff not only allege sufficient facts to show a violation of the law by the defendant, but it must also appear that, by such violation of the law, plaintiff had been injured in his business or property. Hurt v. Brandt, 37 Idaho 186, 215 P. 842 (1923).

Per se Violation.

Because agreements between health insurers and pharmacies to allegedly sell prescription drugs “below cost” did not attempt to fix prices to be charged in transactions with third parties, there was no per se illegal vertical combination. K. Hefner, Inc. v. Caremark, Inc., 128 Idaho 726, 918 P.2d 595 (1996).

Proof of Damages.

To meet the minimum requirement of proof in market exclusion cases in which lost profits are sought, the plaintiff must normally produce evidence falling into one of the following categories: (1) comparison of plaintiff’s performance before and after the wrongful conduct under otherwise similar conditions, (2) comparison of performance of plaintiff’s business, with comparable business in an unrestrained market otherwise comparable to plaintiff’s market or (3) loss of specific business or customers. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

In an antitrust case, there was no justification for trial court’s determination that the gross revenues of the defendant company and subsidiary provided a reasonable foundation for calculating the lost profits of plaintiffs, as such a method of figuring damages assumed, without any support in the record, that the defendant’s operation would not have won any portion of the market absent antitrust violations, and that the plaintiffs had the capacity to assimilate all of the business which defendant performed, and that plaintiffs would have won that business over other insulators who chose not to participate in the action. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

The factfinder may not determine damages by mere speculation and guesswork, and there must be a reasonable foundation established by the evidence from which the factfinder can calculate the amount of damages. It will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Sale of Services.

Language of this section which prohibits the selling of “any article or product at less than its fair market value, or at a less price than it is accustomed to demand or receive therefor in any other place under like conditions” plainly applies only to the sale of an “article or product”; the sale of services is not included. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Sales Below Cost.

This section does not speak in terms of prohibiting sales below cost. The phrase “below cost” in the world of economics is, without further definition, an imprecise term, not always indicative of anticompetitive conduct. Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982).

Sufficiency of Complaint.

While “selling at a loss” might be one factor for a court to consider in determining whether or not specific intent exists to drive a competitor out of business, without additional proof and findings of fact, “selling at a loss” does not constitute a violation of the prohibition against the selling of “any article or product at less than its fair market value . . ..” Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982). Sufficiency of Complaint.

It was necessary that plaintiff allege not only sufficient facts to show violation of law by defendant, but it must also appear that, by reason of such violation of law, plaintiff had been injured in his business or property. Hurt v. Brandt, 37 Idaho 186, 215 P. 842 (1923).

Petition in action for threefold damages need not state facts showing right of action with all fullness and particularity required of indictment, but sufficiency of petition must be tested by local practice obtaining in civil actions. Hurt v. Brandt, 37 Idaho 186, 215 P. 842 (1923).

Sufficient to Convict.

Defendant, and the corporation for which he worked, violated this section when he tore down a sign placed in an adjoining building by plaintiff to notify its customers that it had moved. Twin Falls Farm & City Dist., Inc. v. D & B Supply Co., Inc., 96 Idaho 351, 528 P.2d 1286 (1974).

Unfair Competition.

One is not guilty of unfair competition unless, with the direct purpose of destroying his competitor’s business, he forces prices lower than he can honestly believe will yield a profit when he shall have eventually disposed of the commodities purchased. Udelavitz v. Idaho Junk House, 46 Idaho 441, 268 P. 15 (1928).

In order to make out a case of “unfair competition,” it was not necessary to show that any person had been actually deceived by defendant’s conduct and led to purchase his goods in the belief that they were the goods of the plaintiff, or to deal with the defendant thinking that he was dealing with the plaintiff, and it was sufficient to show that such deception would be the natural and probable result of defendant’s acts. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942).

The sale of goods of one manufacturer or vendor as those of another was “unfair competition” and constituted a “fraud” which a court of equity could lawfully prevent by injunction. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942).

RESEARCH REFERENCES

ALR.

Enforceability, insofar as restrictions would be reasonable, of contract containing unreasonable restrictions on competition. 61 A.L.R.3d 397.

Right of retail buyer of price-fixed product to sue manufacturer on state antitrust claim. 35 A.L.R.6th 245.

§ 48-102. Legislative findings, purpose, interpretation and scope of chapter.

  1. The Idaho legislature finds that fair competition is fundamental to the free market system. The unrestrained interaction of competitive forces will yield the best allocation of Idaho’s economic resources, the lowest prices, the highest quality, and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic and social institutions.
  2. The purpose of this chapter is to maintain and promote economic competition in Idaho commerce, to provide the benefits of that competition to consumers and businesses in the state, and to establish efficient and economical procedures to accomplish these purposes and policies.
  3. The provisions of this chapter shall be construed in harmony with federal judicial interpretations of comparable federal antitrust statutes and consistent with this chapter’s purposes, as set forth in subsection (2) of this section.
  4. This chapter applies to conduct proscribed herein that affects Idaho commerce.
History.

I.C.,§ 48-102, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-102, which comprised 1911, ch. 215, § 2, p. 689; reen. C.L. 107:2; C.S., § 2532; I.C.A.,§ 47-102, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-103. Definitions.

As used in this act:

  1. “Idaho commerce” means any economic activity occurring wholly or partly within the state of Idaho, or which affects economic activity within the state of Idaho.
  2. “Person” means any natural person, corporation, partnership, trust, association, or any other legal or commercial entity.
History.

I.C.,§ 48-103, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-103, which comprised 1911, ch. 215, § 3, p. 688; reen. C.L. 107:3; C.S., § 2533; I.C.A.,§ 47-103, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 2000, Chapter 148, which is compiled as§§ 18-7803 and 48-101 to 48-118. The reference probably should be to “this chapter,” being chapter 1, title 48, Idaho Code.

§ 48-104. Unreasonable restraint of trade or commerce.

A contract, combination, or conspiracy between two (2) or more persons in unreasonable restraint of Idaho commerce is unlawful.

History.

I.C.,§ 48-104, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-104, which comprised 1911, ch. 215, § 4, p. 688; reen. C.L. 107:4; C.S., § 2534; I.C.A.,§ 47-104, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

CASE NOTES

Bid Rigging.

Because an agreement not to bid at a sale of county-owned land at public auction constituted illegal bid rigging under this section and § 1 of the Sherman Act, 15 U.S.C.S. § 1, the agreement was unenforceable, and a jury’s award of damages for breach of the agreement was overturned. Pines Grazing Ass’n v. Flying Joseph Ranch, LLC, 151 Idaho 924, 265 P.3d 1136 (2011).

Purpose.

This section requires a claimant to show a purpose to drive another out of business, reflecting the notion that unfair competition laws were enacted to protect competition, not competitors. This section strikes the balance between free competition and fair competition by offering relief only where a company can show a competitor’s intent to drive the company out of business, rather than simply an intent to compete. Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 243 P.3d 1069 (2010).

RESEARCH REFERENCES

A.L.R.

A.L.R. — Construction and Application of Public Interest Requirement of Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(e)(1) (Tunney Act). 2 A.L.R. Fed. 3d 4.

§ 48-105. Monopolies.

It is unlawful to monopolize, attempt to monopolize, or combine or conspire to monopolize any line of Idaho commerce.

History.

I.C.,§ 48-105, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-105, which comprised 1911, ch. 215, § 5, p. 688; reen. C.L. 107:5; C.S., § 2535; I.C.A.,§ 47-105, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

RESEARCH REFERENCES

A.L.R.

A.L.R. — Construction and Application of Public Interest Requirement of Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(e)(1) (Tunney Act). 2 A.L.R. Fed. 3d 4.

§ 48-106. Acquisitions that substantially lessen competition.

  1. It is unlawful for a person to acquire, directly or indirectly, the whole or any part of the stock, share capital, or other equity interest or the whole or any part of the assets of, another person engaged in Idaho commerce, where the effect of such acquisition may be substantially to lessen competition or to tend to create a monopoly of any line of Idaho commerce.
  2. This section shall not apply to persons purchasing the stock or other equity interest of another person solely for investment and not using those assets by voting or otherwise to bring about, or attempt to bring about, the substantial lessening of competition. Nothing contained in this section shall prevent a person engaged in Idaho commerce from causing the formation of subsidiary corporations or other business organizations, or from owning and holding all or a part of the stock or equity interest of such subsidiary corporations or other business organizations.
History.

I.C.,§ 48-106, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-106, which comprised 1911, ch. 215, § 6, p. 688; reen. C.L. 107:6; C.S., § 2536; I.C.A.,§ 47-106, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

RESEARCH REFERENCES

A.L.R.

A.L.R. — Construction and Application of Public Interest Requirement of Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(e)(1) (Tunney Act). 2 A.L.R. Fed. 3d 4.

§ 48-107. Exempt activities.

  1. No provision of this chapter shall be construed to prohibit:
    1. Activities that are exempt from the operation of the federal antitrust laws.
    2. Activities required or affirmatively approved by any statute of this state or of the United States or by a regulatory agency of this state or of the United States duly acting under any constitutional or statutory authority vesting the agency with such power.
    3. Activities of a municipality or its officers or employees acting in an official capacity, to the extent that those activities are authorized or directed by state law.
    4. The existence of, or membership in, organizations instituted for the purpose of mutual help and not having capital stock or conducted for profit; nor shall the provisions of this act forbid or restrain individual members of such organizations from lawfully carrying out legitimate objectives of the organization.
    5. Activities of any labor organization, individual members of the labor organization, or group of labor organizations, of any employer or group of employers, or of any groups of employees, if these activities are directed predominantly to labor objectives which are permitted under the laws of this state or of the United States.
  2. Persons engaged in the production of agricultural products may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling and marketing the products of these persons, to the extent permitted under the laws of this state or of the United States. These associations may have marketing agencies in common and such associations and their members may make the necessary contracts and agreements to effect such purposes. However, such associations must conform to the requirements of chapter 26, title 22, Idaho Code, or alternatively satisfy the following requirements:
    1. Operate for the mutual benefit of the members thereof, as producers;
    2. Not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members; and
History.

I.C.,§ 48-107, as added by 2000, ch. 148, § 3, p. 377; am. 2011, ch. 244, § 1, p. 656.

STATUTORY NOTES

Prior Laws.

Former§ 48-107, which comprised 1911, ch. 215, § 7, p. 688; reen. C.L. 107:7; C.S., § 2537; I.C.A.,§ 47-107, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Amendments.

The 2011 amendment, by ch. 244, added “or alternatively satisfy the following requirements” at the end of the introductory paragraph in subsection (2) and added paragraphs (2)(a) through (2)(c).

Compiler’s Notes.

The term “this act” in paragraph (1)(d) refers to S.L. 2000, Chapter 148, which is compiled as§§ 18-7803 and 48-101 to 48-118. The reference probably should be to “this chapter,” being chapter 1, title 48, Idaho Code.

Effective Dates.

Section 2 of S.L. 2011, ch. 244 declared an emergency retroactively to July 1, 2000. Approved April 7, 2011.

CASE NOTES

Applicability.

In regulating the collection of solid waste within its city limits, a municipality is exercising its police power function under Idaho Const., Art. XII, § 2, and, under paragraph (1)(c) of this section, it is afforded a statutory exemption from the Idaho competition act; since§ 50-344 does not conflict with granting exclusive solid waste collection franchises, this exercise is valid. Plummer v. City of Fruitland, 139 Idaho 810, 87 P.3d 297 (2004).

§ 48-108. Civil actions and settlements by the attorney general.

  1. Whenever the attorney general has reason to believe that any person is engaging, has engaged, or is about to engage in any act or practice declared unlawful by this chapter, the attorney general may bring an action in the name of the state against that person:
    1. To obtain a declaratory judgment that the act or practice violates the provisions of this chapter;
    2. To enjoin any act or practice that violates the provisions of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction, without bond, upon the giving of appropriate notice;
    3. To recover on behalf of the state and its agencies actual damages or restitution;
    4. To recover civil penalties of up to fifty thousand dollars ($50,000) per violation of section 48-104 or 48-105, Idaho Code, or any injunction, judgment or consent order issued or entered into pursuant to this chapter and reasonable expenses, investigative costs and attorney’s fees; and
    5. To obtain an order requiring divestiture of any assets:
      1. Acquired in violation of section 48-106, Idaho Code, to the extent determined necessary by the district court to avoid the creation of a monopoly or any likely substantial lessening of competition resulting from such transaction found violative of section 48-106, Idaho Code; or
      2. To restore competition in any line of Idaho commerce which has been eliminated by a violation of section 48-105, Idaho Code.
      3. Attaching or seizing a person’s bank account or any other personal property;
      4. Initiating a civil action against any person; or
      5. Garnishing an individual’s wages.
  2. The attorney general also may bring a civil action in the name of the state, as parens patriae on behalf of persons residing in this state, to secure monetary relief as provided under this chapter for injury directly or indirectly sustained by those persons because of any violation of section 48-104 or 48-105, Idaho Code, in accordance with the following provisions:
    1. The district court shall award the attorney general as monetary relief the total damages sustained for violations of section 48-104 or 48-105, Idaho Code, and the cost of suit, including a reasonable attorney’s fee. The court shall increase any damage recovery to an amount not in excess of three (3) times the damages sustained if the court finds that the violation at issue constituted a per se violation of section 48-104, Idaho Code, or an intentional violation of section 48-105, Idaho Code. The court shall exclude from the amount of monetary relief awarded in such action any amount which duplicates amounts which have been awarded for the same injury already or which are allocable to persons who have excluded their claims pursuant to subsection (2)(c) of this section.
    2. In any action brought under this section, the attorney general shall, at such times, in such manner, and with such content as the district court may direct, cause notice of the parens patriae action to be given by publication. If the court finds that notice given solely by publication would deny due process of law to any person, the court shall direct the attorney general to give such notice as may be required by due process of law.
    3. Any person on whose behalf an action is brought under this section may elect to exclude from such adjudication the portion of the attorney general’s claim for monetary relief attributable to him by filing notice of such election with the court within the time period specified in the notice of such action given to the persons to be benefited by the action. Any person failing to give such notice shall be barred during the pendency of such action from commencing an action in his or her own name for the injury alleged in such action and the final judgment in such action shall be res judicata as to any claim which could be brought by such person under this act based on the facts alleged or proven in such action. (d) All damages shall be distributed in such a manner that will afford each person a reasonable opportunity to secure his appropriate portion of the net monetary relief.
  3. In lieu of instigating or continuing an action or proceeding, or to conclude an investigation commenced or contemplated under section 48-109, Idaho Code, the attorney general may accept a consent decree with respect to any act or practice alleged to be a violation of this chapter. The consent decree may include a stipulation for the payment of civil penalties, the attorney general’s reasonable expenses, investigative costs and attorney’s fees, an agreement to pay damages or to allow for restitution of money, property or other things received in connection with a violation of this chapter, and agreed to injunctive provisions. Before any consent decree entered into pursuant to this section is effective, it must be approved by the district court and an entry made in the district court in the manner required for making an entry of judgment. If the consent decree submitted to the court is to settle an action brought under subsection (2) of this section, notice of the proposed settlement shall be given in such manner as the court directs. Once court approval is received, any breach of the conditions of the consent decree shall be treated as a violation of a court order, and shall be subject to all penalties provided by law for violation of court orders, including the penalties set forth in section 48-111, Idaho Code.
  4. The attorney general may proceed under any antitrust laws in the federal courts on behalf of this state or any of its political subdivisions or agencies.
History.

I.C.,§ 48-108, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-108, which comprised 1911, ch. 215, § 8, p. 688; reen. C.L. 107:8; C.S., § 2538; I.C.A.,§ 47-108, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Compiler’s Notes.

The term “this act” in paragraph (2)(c) refers to S.L. 2000, Chapter 148, which is compiled as§§ 18-7803 and 48-101 to 48-118. The reference probably should be to “this chapter,” being chapter 1, title 48, Idaho Code.

§ 48-109. Civil investigations.

  1. Whenever the attorney general has reason to believe that a person is engaging or has engaged in any act or practice declared unlawful by this chapter, he may, prior to the institution of a civil proceeding thereon, execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to a civil investigation, a written civil investigative demand requiring that person to appear and give oral testimony, under oath, concerning documentary material or information, or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as may be stated in the investigative demand, or to furnish any combination thereof, concerning the conduct of any Idaho commerce that is the subject matter of the investigation. The return date of a civil investigative demand shall be not less than thirty (30) days after service of the demand.
  2. To accomplish the objectives and to carry out the duties prescribed by this chapter, the attorney general may also issue subpoenas to any person and conduct hearings in aid of any investigation or inquiry.
    1. The scope of any civil investigative demand or subpoena shall be consistent with the scope of discovery as provided for by rule 26(b)(1), Idaho rules of civil procedure. (3)(a) The scope of any civil investigative demand or subpoena shall be consistent with the scope of discovery as provided for by rule 26(b)(1), Idaho rules of civil procedure.
    2. Any person who is not the subject of investigation shall be reimbursed the reasonable expenses of complying with a civil investigative demand or subpoena.
  4. At any time before the return date specified in a civil investigative demand, or within thirty (30) days after the demand has been served, whichever period is later, a petition to extend the return date, or to modify or set aside the demand, stating good cause, may be filed in the district court of the county where the person served with the demand resides or has his principal place of business or in the district court in Ada county.
  5. Any person who in good faith complies with a subpoena or investigative demand issued under this section shall be immune from criminal or civil liability for such compliance, so long as such person has complied with any express contractual obligation to notify a third party of the civil investigative demand or subpoena.
  6. Except as provided in subsection (7) of this section, any procedure, testimony taken, or material produced under this section shall be kept confidential by the attorney general before bringing an action against a person under this chapter for the violation under investigation unless confidentiality is waived by the person whose testimony is disclosed, or is waived by the person who produced to the attorney general or his designee the material being disclosed, or the disclosure is authorized by court order.
  7. The attorney general or his designee may disclose the testimony or material to a person who has a need to know such information and is employed by this state, the United States, or any other state, if, before disclosure, the receiving official agrees in writing to comply with the confidentiality provisions of this section and the attorney general or his designee has determined prior to making such disclosure that disclosure to the receiving person is reasonably necessary to permit proper enforcement of the antitrust laws of the United States or any state. (8) The attorney general or his designee may exclude from the place of any examination under this section any person, except the person being examined and that person’s counsel.
History.

I.C.,§ 48-109, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-109, which comprised 1911, ch. 215, § 9, p. 688; reen. C.L. 107:9; C.S., § 2539; I.C.A.,§ 47-109, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-110. Failure to obey civil investigative demand or subpoena.

  1. If any person fails or refuses to obey any subpoena or civil investigative demand issued by the attorney general, the attorney general may, after notice, apply to the district court and, after a hearing, request an order ordering the person to comply with the subpoena or civil investigative demand issued by the attorney general.
  2. The court shall award the prevailing party reasonable expenses and attorney’s fees incurred in obtaining or resisting an order under this section if the court finds that the attorney general’s request for an order under this section or a person’s resistance to obeying any subpoena or investigative demand, was without a reasonable basis in fact or law.
  3. Disobedience of any order entered under the provisions of this section shall be treated as a violation of a court order, and subject the offending person to all penalties provided by law for violations of court orders, including the payment of civil penalties of not more than ten thousand dollars ($10,000).
History.

I.C.,§ 48-110, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-110, which comprised 1911, ch. 215, § 10, p. 688; compiled and reen. C.L. 107:10; C.S., § 2540; I.C.A.,§ 47-110, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-111. Violation of court orders and consent decrees — Penalties.

Any person who violates the terms of a consent order entered into pursuant to section 48-108, Idaho Code, or any other judgment or final order entered into under the provisions of this chapter, shall forfeit and pay a civil penalty of not more than fifty thousand dollars ($50,000) for each violation, the amount of the penalty to be determined by the district court issuing the judgment or order, or approving the consent decree.

History.

I.C.,§ 48-111, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-111, which comprised 1911, ch. 215, § 11, p. 688; reen. C.L. 107:11; C.S., § 2541; I.C.A.,§ 47-111, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-112. Additional relief of district court authorized.

When the state prevails in any action brought under section 48-108, Idaho Code, the court shall award reasonable costs and attorney’s fees to the attorney general. In addition, the court may:

  1. Make orders or judgments as necessary to prevent the use or employment by a person of any act or practice declared unlawful by this act;
  2. Make orders or judgments as necessary to compensate persons for damages sustained or to provide for restitution to persons of money, property or other things received from persons in connection with a violation of this chapter;
  3. Appoint a receiver to oversee assets or order sequestration of assets whenever it appears that the defendant threatens or is about to remove, conceal or dispose of property to the damage of persons to whom restoration would be made under this section and assess the expenses of a master, receiver or escrow agent against the defendant; and
  4. Grant other appropriate relief.
History.

I.C.,§ 48-112, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-112, which comprised 1911, ch. 215, § 12, p. 688; reen. C.L. 107:12; C.S., § 2542; I.C.A.,§ 47-112, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Compiler’s Notes.

The term “this act” at the end of subsection (1) refers to S.L. 2000, Chapter 148, which is compiled as§§ 18-7803 and 48-101 to 48-118. The reference probably should be to “this chapter,” being chapter 1, title 48, Idaho Code.

§ 48-113. Private causes of action.

  1. Any person injured directly or threatened with direct injury by reason of anything prohibited by this chapter, may bring an action for injunctive relief, damages, and, as determined by the court, reasonable costs and attorney’s fees. The court shall exclude from the amount of monetary relief awarded to a plaintiff under this section any amount which duplicates amounts allocable to any other actual or potential plaintiff including, without limitation, potential claims by the attorney general on behalf of indirect purchasers for the same conduct or injury.
  2. If the district court finds that the violation at issue constituted a per se violation of section 48-104, Idaho Code, or an intentional violation of section 48-105, Idaho Code, it shall increase the recovery to an amount not in excess of three (3) times the damages sustained.
History.

I.C.,§ 48-113, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-113, which comprised 1911, ch. 215, § 13, p. 688; reen. C.L. 107:13; C.S., § 2543; I.C.A.,§ 47-113, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

RESEARCH REFERENCES

ALR.

§ 48-114. Awards to the attorney general — Use of moneys.

All costs and fees recovered by the attorney general under the terms of this chapter shall be remitted to the consumer protection account [consumer protection fund]. Such costs and fees deposited into the consumer protection account [consumer protection fund] under this chapter shall be treated as interaccount receipts and may be expended pursuant to interaccount appropriation and shall be used for the furtherance of the attorney general’s duties and activities under this chapter. All penalties recovered under section 48-108(1)(d), 48-110 or 48-111, Idaho Code, or actual damages or restitution recovered under section 48-108(1)(c), Idaho Code, shall be remitted to the general fund.

History.

I.C.,§ 48-114, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

General fund,§ 67-1205.

Prior Laws.

Former§ 48-114, which comprised 1911, ch. 215, § 14, p. 688; reen. C.L. 107:14; C.S., § 2544; I.C.A.,§ 47-114, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Compiler’s Notes.

The bracketed insertions at the end of the first sentence and near the beginning of the second sentence were added by the compiler to correct the name of the referenced fund. See§ 48-606.

§ 48-115. Statute of limitations.

  1. Any action brought by the attorney general pursuant to this chapter is barred if it is not commenced within four (4) years after the cause of action accrues.
  2. Any other action brought pursuant to this chapter is barred if it is not commenced within four (4) years after the cause of action accrues, or within one (1) year after the conclusion of an action brought by the state pursuant to this chapter based in whole or in part on any matter complained of in the subsequent action, whichever is the latter.
  3. The foregoing statute of limitations shall be tolled during any period when the defendant in any action fraudulently concealed the events upon which the cause of action is based.
History.

I.C.,§ 48-115, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-115, which comprised 1911, ch. 215, § 15, p. 688; reen. C.L. 107:15; C.S., § 2545; I.C.A.,§ 47-115, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-116. Action not barred because it affects interstate or foreign commerce.

No action under this chapter shall be barred on the ground that the activity or conduct complained of in any way affects or involves interstate or foreign commerce.

History.

I.C.,§ 48-116, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-116, which comprised 1911, ch. 215, § 16, p. 688; reen. C.L. 107:16; C.S., § 2546; I.C.A.,§ 47-116, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-117. Service of notice.

Service of any notice, civil investigative demand, or subpoena under this chapter shall be made personally within this state, but if personal service cannot be obtained, substituted service may be made by mailing service by registered or certified mail to the last known place of business, residence, or abode of the person within or without this state.

History.

I.C.,§ 48-117, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-117, which comprised 1911, ch. 215, §§ 17, 18, p. 688; compiled and reen. C.L. 107:17; C.S., § 2547; I.C.A.,§ 47-117., was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-118. Venue.

Any action, application, or motion brought by the attorney general against a person under this chapter may be filed in the district court of the county in which the person resides or has his principal place of business, or with consent of the parties, may be brought in the district court of Ada county. If the person does not reside in or have a principal place of business in this state, the pleading may be brought in any district court in this state.

History.

I.C.,§ 48-118, as added by 2000, ch. 148, § 3, p. 377.

STATUTORY NOTES

Prior Laws.

Former§ 48-118, which comprised 1951, ch. 197, § 1, p. 421, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

§ 48-119. Purpose of extension to distributors of publications. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1951, ch. 197, § 2, p. 421, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

Chapter 2 ANTI-PRICE DISCRIMINATION ACT

Sec.

§ 48-201. Definitions.

The following terms for the purposes of this act are hereby defined as follows:

  1. “Person” means the plural as well as the singular and shall include an individual, partnership, association, a joint stock company, business trust and an incorporated as well as an unincorporated organization.
  2. The term “price” as used herein shall mean the net price to the buyer after deduction of all discounts, rebates or other price concessions paid or allowed by the seller.
  3. The term “commerce” means trade or commerce within this state.
History.

1937, ch. 229, § 1, p. 406.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

CASE NOTES

Insufficient Evidence.

Where the plaintiff makers of promissory notes to the defendant oil company failed to prove by a preponderance of the evidence that the agreement between the parties, whereby the makers of the notes would provide their land to build a gas station and sell the oil company’s gasoline products, was an illegal tying arrangement or that the agreement substantially lessened competition or tended to create a monopoly in favor of the oil company, the Idaho Antitrust Law and this chapter were not applicable. Pollard Oil Co. v. Christensen, 103 Idaho 110, 645 P.2d 344 (1982).

§ 48-202. Discrimination unlawful — Differentials — Customer selection — Price changes — Rebutting prima facie case — Commissions or brokerages prohibited — Customer discrimination or receipt of discrimination prohibited.

  1. It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality or to discriminate in price between different sections, communities or cities or portions thereof or between different locations in such sections, communities, cities or portions thereof in this state, where the effect of such discriminations 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: provided, that nothing herein contained shall prevent 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 such commodities are to such purchasers sold or delivered: and provided further, that nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: and provided further, that nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonable goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
  2. Upon proof being made, in any suit or other proceeding in which any violation of this act may be at issue, that there has been discrimination in price, or in services or facilities furnished, or in payment for services or facilities to be rendered, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged with such violation: provided, however, that nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price, 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.
  3. It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to 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, or merchandise; provided, however, that in all such transactions of sale and purchase it shall be unlawful for either party to such transaction to 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 in fact for or in behalf, or is subject to the direct or indirect control, of the said other party to such transaction.
  4. It shall be unlawful for any person engaged in commerce, in the course of such commerce, to 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, 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.
  5. It shall be unlawful for any person engaged in commerce, in the course of such commerce, to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity 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 so purchased upon terms not accorded to all purchasers on proportionally equal terms.
  6. It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.
History.

1937, ch. 229, § 2, p. 406.

STATUTORY NOTES

Cross References.

Discrimination and unfair competition in buying and selling dairy products,§ 37-1001 et seq.

Farm produce price discrimination, prevention of,§ 22-1601 et seq.

Compiler’s Notes.

The term “this act” near the beginning of subsection (b) refers to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

CASE NOTES

Attorney Fees.

The peculiar nature of a legal malpractice action requires the action to proceed as a suit within a suit; therefore, an award of attorney fees pursuant to the underlying antitrust action constitutes a part of the measure of damages in the malpractice case, and must be submitted as part of the proof of damages under the antitrust claim; it is not sufficient to file a post-trial affidavit of costs and fees under Idaho R. Civ. P. 54. Fitzgerald v. Walker, 121 Idaho 589, 826 P.2d 1301 (1992).

RESEARCH REFERENCES

ALR.

§ 48-203. Cooperative associations exempt.

Nothing in this act shall 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.

History.

1937, ch. 229, § 3, p. 406.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

§ 48-204. Rights of persons injured by violations of act.

  1. Any person injured by any violation, or who will suffer injury from any threatened violation, of this act, may maintain an action, in any court of competent jurisdiction of this state, to prevent, restrain or enjoin such violation or threatened violation. If in such action, a violation or threatened violation of this act shall be established, the court shall enjoin and restrain or otherwise prohibit such violation or threatened violation, and the plaintiff in said action shall be entitled to recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.
  2. In the event no injunctive relief is sought or required, any person injured by any violation of this act, may maintain an action for damages alone in any court of competent jurisdiction in this state, and the measure of damages in such action shall be the same as that prescribed by subsection (a) of this section.
  3. In any proceedings instituted or action brought in pursuance of the provisions of subsections (a) and (b) of this section, the plaintiff, upon proof that he has been unlawfully discriminated against by the defendant, shall be conclusively 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 he may have sustained as a result of such discrimination.
  4. 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 localities and vicinities in which the offense is committed, the said cost survey shall be deemed competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of this act.
  5. Any contract, express or implied, made by any person in violation of any of the provisions of this act, is declared to be an illegal contract and no recovery thereon shall be had.
History.

1937, ch. 229, § 4, p. 406.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” throughout this section refers to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

CASE NOTES

Attorney Fees.

The peculiar nature of a legal malpractice action requires the action to proceed as a suit within a suit; therefore, an award of attorney fees pursuant to the underlying antitrust action constitutes a part of the measure of damages in the malpractice case, and must be submitted as part of the proof of damages under the antitrust claim; it is not sufficient to file a post-trial affidavit of costs and fees under Idaho R. Civ. P. 54. Fitzgerald v. Walker, 121 Idaho 589, 826 P.2d 1301 (1992).

§ 48-205. Title of act.

This act shall be known and designated as the “Anti-Price Discrimination Act” and its inhibitions against discrimination 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 this act.

History.

1937, ch. 229, § 5, p. 406.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” at the beginning and end of this section refers to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

§ 48-206. Separability.

If any provision of this act, or the application thereof to any person or circumstances, is held invalid, the remainder of the act, and the application of such provisions to other persons or circumstances, shall not be affected thereby.

History.

1937, ch. 229, § 6, p. 406.

STATUTORY NOTES

Compiler’s Notes.

The terms “this act” and “the act” refer to S.L. 1937, Chapter 229, which is compiled as§§ 48-201 to 48-206.

Chapter 3 IDAHO PATIENT ACT

Sec.

§ 48-301. Short title. [Effective January 1, 2021.].

This act shall be known and may be cited as the “Idaho Patient Act.”

History.

I.C.,§ 48-301, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former chapter 3 of Title 48, which comprised the following sections, was repealed by S.L. 2000, ch. 148, § 1, effective July 1, 2000.

48-301: 1937, ch. 240, § 1, p. 429.

48-302: 1937, ch. 240, § 2, p. 429.

48-303: 1937, ch. 240, § 3, p. 429.

48-304: 1937, ch. 240, § 4, p. 429.

48-305: 1937, ch. 240, § 5, p. 429.

48-306: 1937, ch. 240, § 6, p. 429.

48-306A: I.C.,§ 48-306A, as added by 1969, ch. 239, § 1, p. 755.

48-307: 1937, ch. 240, § 7, p. 429; am. 1955, ch. 94, § 3, p. 208.

48-308: I.C.,§ 48-308, as added by 1955, ch. 94, § 4, p. 208.

48-309: I.C.,§ 48-309, as added by 1955, ch. 94, § 5, p. 208.

48-310: I.C.,§ 48-310, as added by 1955, ch. 94, § 6, p. 208.

48-311: I.C.,§ 48-311, as added by 1955, ch. 94, § 7, p. 208.

48-312: I.C.,§ 48-312, as added by 1955, ch 94, § 8, p. 208.

Compiler’s Notes.

The term “this act” refers to S.L. 2020, Chapter 139, which is compiled as§§ 48-301 to 48-312.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-302. Legislative intent. [Effective January 1, 2021.].

The Idaho legislature finds that medical billing practices have little visibility to Idaho citizens. As a result, consumers often find themselves in collection actions for debts they were unaware of, from health care providers whom they do not recognize. Once in collections, current Idaho law enables excessive attorney’s fees and fails to provide judges with clear guidance to combat abuses of the collections process. This chapter shall govern the fair collection of debts owed to health care providers.

History.

I.C.,§ 48-302, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-302 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-303. Definitions. [Effective January 1, 2021.].

For the purposes of this chapter:

  1. “Consolidated summary of services” means a written notice that contains, at a minimum, the following:
    1. The name and contact information, including telephone number, of the patient;
    2. The name and contact information, including telephone number, of the health care facility that the patient visited to receive goods or services;
    3. The date and duration of the visit to the health care facility by the patient;
    4. A general description of goods and services provided to the patient during the visit to the health care facility, including the name, address, and telephone number of each billing entity whose health care providers provided the services and goods to the patient; and
    5. A clear and conspicuous notification at the top of the notice that states: “This is Not a Bill. This is a Summary of Medical Services You Received. Retain This Summary for Your Records. Please Contact Your Insurance Company and the Health Care Providers Listed on this Summary to Determine the Final Amount You May Be Obligated to Pay.”
  2. “Contested judgment” means a court judgment sought by one (1) party that is challenged by another party through a filing with the court or by presenting evidence or argument at a hearing before the court.
  3. “Extraordinary collection action” means any of the following actions done in connection with a patient’s debt:
    1. Prior to sixty (60) days from the patient’s receipt of the final statement, selling, transferring, or assigning any amount of a patient’s debt to any third-party, or otherwise authorizing any third-party to collect the debt in a name other than the name of the health care provider;
    2. Reporting adverse information about the patient to a consumer reporting agency; or
    3. Commencing any judicial or legal action or filing or recording any document in relation thereto, including but not limited to:
    4. Placing a lien on a person’s property or assets;
  4. “Final statement” means a written notice that contains, at a minimum, the following:
    1. The name and contact information, including telephone number, of the patient;
    2. The name and contact information, including telephone number, of the health care facility where the health care provider provided goods and services to the patient;
    3. A list of the goods and services that the health care provider provided to the patient during the patient’s visit to the health care facility, including the initial charges for the goods and services and the date the goods and services were provided, in reasonable detail;
    4. A statement that a full itemized list of goods and services provided to the patient is available upon the patient’s request;
    5. The name of the third-party payors to which the charges for health care services were submitted by the health care provider and the patient’s group and membership numbers;
    6. A detailed description of all reductions, adjustments, offsets, third-party payor payments, including payments already received from the patient, that adjust the initial charges for the goods and services provided to the patient during the visit; and (g) The final amount that the patient is liable to pay after taking into account all applicable reductions, including but not limited to the items identified in paragraph (f) of this subsection.
  5. “Health care facility” means any person, entity, or institution operating a physical or virtual location that holds itself out to the public as providing health care services through itself, through its employees, or through third-party health care providers. Health care facilities include but are not limited to hospitals and other licensed inpatient centers; ambulatory surgical or treatment centers; skilled nursing centers; residential treatment centers; urgent care centers; diagnostic, laboratory, and imaging centers; and rehabilitation and other therapeutic health settings, as well as medical transportation providers.
  6. “Health care provider” means:
    1. A physician or other health care practitioner licensed, accredited, or certified to perform health care services consistent with state law, or any agent or third-party representative thereof; or
    2. A health care facility or its agent.
  7. “Health care services” means services for the diagnosis, prevention, treatment, cure, or relief of a health condition, illness, injury, or disease.
  8. “Patient” means a person who seeks or receives services from a health care provider. For the purposes of this chapter, “patient” includes a parent if the patient is a minor, a legal guardian if the patient is an adult under guardianship, or any person contractually or otherwise liable for the financial obligations of the person receiving goods or services from the health care provider.
  9. “Third-party payor” means a health carrier as defined in section 41-5903, Idaho Code, or a self-funded plan as defined in section 41-4002 or 41-4102, Idaho Code.
  10. “Uncontested judgment” means a court judgment sought by one (1) party that is not contested by another party by filing with the court or by presenting evidence or argument at a hearing before the court.
History.

I.C.,§ 48-303, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-303 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-304. Requirements for extraordinary collection action. [Effective January 1, 2021.].

No person shall engage, directly or indirectly, in any extraordinary collection action against a patient unless:

  1. Within forty-five (45) days from the date of the provision of goods or the delivery of services to the patient or from the date of discharge of the patient from a health care facility, whichever is later, a health care provider submits its charges related to the provision of goods or services to the third-party payor or payors of the patient, identified by the patient to the health care provider in connection with the services, if any, or, in the event no third-party payor was identified, to the patient;
  2. Within sixty (60) days from the date of the provision of goods or services to the patient or from the date of discharge, whichever is later, the patient receives from the health care facility that the patient visited, a consolidated summary of services, free of charge, unless the health care facility is exempted from providing a consolidated summary of services pursuant to section 48-309, Idaho Code;
  3. The patient receives, free of charge, a final statement from the billing entity of the health care provider;
  4. The health care provider does not charge or cause to accrue any interest, fees, or other ancillary charges until at least sixty (60) days have passed from the date of receipt of the final statement; and
  5. At least ninety (90) days have passed from receipt of the final statement by the patient and final resolution of all internal reviews, good faith disputes, and appeals of any charges or third-party payor obligations or payments.
History.

I.C.,§ 48-304, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-304 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-305. Fees and costs for extraordinary collection action. [Effective January 1, 2021.].

  1. Notwithstanding any provision of law or agreement to the contrary, a patient shall have no liability to any party taking extraordinary collection action for costs, expenses, and fees, including attorney’s fees, unless the party has complied with section 48-304, Idaho Code, and then subject to the following limitations:
    1. In the case of an uncontested judgment against the patient, the court may award, in addition to the outstanding principal, up to three hundred fifty dollars ($350) or an amount equal to one hundred percent (100%) of the outstanding principal amount, whichever is less, plus any prejudgment interest accrued in accordance with section 48-304(4), Idaho Code, and any postjudgment interest awarded by the court;
    2. In the case of a contested judgment against the patient, the court may award, in addition to the outstanding principal, up to seven hundred fifty dollars ($750) or an amount equal to one hundred percent (100%) of the outstanding principal amount, whichever is less, plus any prejudgment interest accrued in accordance with section 48-304(4), Idaho Code, and any postjudgment interest awarded by the court;
    3. In the case of postjudgment motions and writs, the court may award up to seventy-five dollars ($75.00) for any successful motion or application for a writ of attachment to any particular garnishee and twenty-five dollars ($25.00) for any subsequent application for a writ to the same garnishee. In the case of garnishments, the court may also award service fees as prescribed by the applicable board of county commissioners pursuant to section 11-729, Idaho Code.
  2. In the case of a contested judgment, if a party taking extraordinary collection action against a patient prevails against a patient and incurs costs, expenses, and fees, including attorney’s fees, that are grossly disproportionate to the award amounts set forth in subsection (1)(b) of this section, then the party may petition the court for a supplemental award for costs, expenses, and fees. Upon an affirmative showing that the incurred costs, expenses, and fees are grossly disproportionate to the award amounts set forth in subsection (1)(b) of this section, and that fees were incurred because of the patient’s willful attempt to avoid paying a bona fide debt, then the court may take into account the factors outlined in rule 54(e)(3) of the Idaho rules of civil procedure and may, in its discretion, award supplemental costs, expenses, and reasonable attorney’s fees.
  3. Notwithstanding any provision of law or agreement to the contrary, if a patient in a contested judgment is a prevailing party, then the patient shall be entitled to recover from a nonprevailing party all costs, expenses, and fees, including attorney’s fees, incurred by the patient in contesting the action, and the patient shall have no liability to any nonprevailing parties for any costs, expenses, and fees, including attorney’s fees and prejudgment interest incurred by a nonprevailing party.
History.

I.C.,§ 48-305, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES
Prior Laws.

Former§ 48-305 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-306. Extraordinary collection after untimely notice — Limitation. [Effective January 1, 2021.].

If a party is unable to engage in an extraordinary collection action because the health care provider or health care facility failed to meet the timing requirements of section 48-304(1) or (2), Idaho Code, but complies with such timing requirements within either an additional forty-five (45) days for failure to meet the timing requirements of section 48-304(1), Idaho Code, or an additional ninety (90) days for failure to meet the timing requirements of section 48-304(2), Idaho Code, then as long as all other requirements of section 48-304, Idaho Code, have been satisfied, such party may commence an extraordinary collection action. Notwithstanding any provision of law or agreement to the contrary, in any such collection action, the patient shall have no liability for costs, expenses, and fees, including attorney’s fees.

History.

I.C.,§ 48-306, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-306 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-307. Burden of proof. [Effective January 1, 2021.].

Any person seeking to engage in an extraordinary collection action bears the burden of establishing that the requirements of sections 48-304 and 48-306, Idaho Code, if applicable, have been satisfied prior to engaging in any extraordinary collection action. Any party commencing a judicial action against a patient must plead with particularity its compliance with each requirement of sections 48-304 and 48-306, Idaho Code, as the case may be.

History.

I.C.,§ 48-307, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-307 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-308. Rebuttable presumption of receipt. [Effective January 1, 2021.].

A patient shall be presumed to have received a consolidated summary of services or a final statement three (3) days after the document has been sent by first class mail to the patient’s address confirmed by the patient during the patient’s last visit to the health care provider or as updated by the patient in subsequent written or electronic communications. Nothing in this section shall be interpreted as precluding the patient from agreeing in writing to receive consolidated summaries of services or final statements via email or other electronic means.

History.

I.C.,§ 48-308, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-308 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-309. Delivery of consolidated summary of services. [Effective January 1, 2021.].

Notwithstanding any provision of law to the contrary in this chapter, a health care facility is not required to send a consolidated summary of services to a patient prior to engaging in extraordinary collection action if:

  1. The patient will receive a final statement from a single billing entity for all goods and services provided to the patient at that health care facility;
  2. The patient was clearly informed in writing of the name, phone number, and address of the billing entity; and
  3. The health care facility otherwise complies with all other provisions of section 48-304, Idaho Code.
History.

I.C.,§ 48-309, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-309 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-310. Contracted service. [Effective January 1, 2021.].

Nothing in this chapter prohibits a health care facility from authorizing a health care provider by contract to provide the consolidated summary of services required by section 48-304(2), Idaho Code, on its behalf.

History.

I.C.,§ 48-310, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-310 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-311. Enforcement and civil penalties. [Effective January 1, 2021.].

If any party takes any extraordinary collection action other than in accordance with section 48-304 or 48-306, Idaho Code, then:

  1. Notwithstanding any provision of law or agreement to the contrary, a patient shall have no liability to any party for any collection costs, expenses, and fees, including attorney’s fees and prejudgment and postjudgment interest;
  2. The party is liable to the patient in an amount equal to any actual damages sustained by the patient as a result of any failure to comply, or one thousand dollars ($1,000), whichever is greater; and
  3. Where a court finds a party has willfully or knowingly violated section 48-304 or 48-306, Idaho Code, the court may award up to three (3) times the amount of actual damages, or three thousand dollars ($3,000), whichever is greater. In any successful action to enforce the liability set forth in this section, the patient shall be entitled to the costs of the action, together with reasonable attorney’s fees, as determined by the court.
History.

I.C.,§ 48-311, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-311 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

§ 48-312. Non-extraordinary collection actions. [Effective January 1, 2021.].

Nothing in this chapter shall be interpreted to restrict the ability of any person to demand and collect payment for the principal amount of any medical goods or services by means other than extraordinary collection action, as defined in section 48-303, Idaho Code.

History.

I.C.,§ 48-312, as added by 2020, ch. 139, § 1, p. 426.

STATUTORY NOTES

Prior Laws.

Former§ 48-312 was repealed. See Prior Laws,§ 48-301.

Effective Dates.

Section 2 of S.L. 2020, ch. 139 provided that the act should take effect on and after January 1, 2021.

Chapter 4 UNFAIR SALES ACT

Sec.

§ 48-401. Title of act. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 1, p. 427.

§ 48-402. Declaration of policy and purpose. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 2, p. 427.

§ 48-403. Definitions of terms. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 3, p. 427; am. 1941, ch. 117, § 1, p. 230; am. 1955, ch. 95, § 2, p. 211; am. 1955, ch. 234, § 8, p. 521.

§ 48-404. Advertising or sales at less than cost contrary to public policy. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 4, p. 427; am. 1941, ch. 117, § 2, p. 230.

§ 48-405. Penalty for advertising or selling merchandise at less than cost. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 5, p. 427; am. 1941, ch. 117, § 3, p. 230; am. 1955, ch. 95, § 3, p. 211.

§ 48-405A. Limitation of quantity of items offered for sale at retail prohibited. [Repealed.]

Repealed by S.L. 2009, ch. 146, § 1.

History.

I.C.,§ 48-405A, as added by 1969, ch. 239, § 2, p. 755.

§ 48-406. Injunctions. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

I.C.,§ 48-406, as added by 1955, ch. 95, § 4, p. 211; am. 2012, ch. 20, § 22, p. 66; am. 2013, ch. 187, § 8, p. 447.

STATUTORY NOTES

Prior Laws.

Former§ 48-406, which comprised S.L. 1939, ch. 209, § 6, p. 427; am. 1941, ch. 117, § 4, p. 230; am. 1945, ch. 206, § 1, p. 387, was repealed by S.L. 1955, ch. 95, § 1, p. 211.

§ 48-407. Exempted sales. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 7, p. 427; am. 1941, ch. 117, § 5, p. 230.

§ 48-408. Supervision and administration of act by governor. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

I.C.,§ 48-408, as added by 1955, ch. 95, § 5, p. 211.

STATUTORY NOTES

Prior Laws.

Former§ 48-408, which comprised S.L. 1939, ch. 209, § 8, p. 427; am. 1941, ch. 117, § 6, p. 230; am. 1945, ch. 206, § 2, p. 387, was repealed by S.L. 1955, ch. 95, § 1, p. 211.

§ 48-409. Witnesses

Exemption from prosecution based upon testimony. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 9, as added by 1941, ch. 117, § 7, p. 230.

§ 48-410. Levy and collection of Idaho development and publicity fund tax

Appropriation and disbursements. [Repealed.]

S.L. 1978, ch. 181, § 1, effective on and after January 1, 1979.

History.

S.L. 1939, ch. 209, § 10, as added by S.L. 1941, ch. 117, § 7, p. 230; am. 1955, ch. 95, § 6, p. 211; am. 1955, ch. 234, § 9, p. 521; am. 1961, ch. 150, § 1, p. 216.

§ 48-411. Separability. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

1939, ch. 209, § 12, as added by 1941, ch. 117, § 7, p. 230.

§ 48-412. Deceptive advertising as unfair competition. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

I.C.,§ 48-412, as added by 1959, ch. 158, § 1, p. 379.

§ 48-413. Rebates unlawful. [Repealed.]

Repealed by S.L. 2018, ch. 179, § 1, effective July 1, 2018.

History.

I.C.,§ 48-413, as added by 1963, ch. 144, § 1, p. 419.

Chapter 5 REGISTRATION AND PROTECTION OF TRADEMARKS

Sec.

§ 48-501. Definitions.

Whenever used in this chapter:

  1. “Abandoned” shall mean when either of the following occurs:
    1. When the use of the mark has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for two (2) consecutive years shall constitute prima facie evidence of abandonment.
    2. When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.
  2. “Applicant” shall mean the person filing an application for registration of a mark under this act, and the legal representatives, successors, or assigns of such person.
  3. “Certification mark” shall mean any word, name, symbol or device or any combination thereof: (a) used by a person other than its owner, or (b) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register on the principal register established by this chapter to certify regional or other origin, material, mode of manufacture, quality, accuracy or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.
  4. “Collective mark” shall mean a trademark or service mark: (a) used by the members of a cooperative, an association, or other collective group or organization; or (b) which such cooperative association or other collective group or organization has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, and includes marks indicating membership in a union, an association or other organization.
  5. “Dilution” shall mean the lessening of the capacity of registrant’s mark to identify and distinguish goods or services, regardless of the presence or absence of: (a) competition between the parties, or (b) likelihood of confusion, mistake or deception.
  6. “Juristic person” shall mean a firm, partnership, corporation, limited liability company or partnership, union, association, or other organization capable of suing and being sued in a court of law.
  7. “Mark” shall mean any trademark, service mark, collective mark or certification mark entitled to registration under this act whether registered or not.
  8. “Person” shall mean the applicant or other party entitled to a benefit or privilege or rendered liable under the provisions of this act and includes a juristic person as well as a natural person.
  9. “Registrant” shall mean the person to whom the registration of a mark under this act is issued, and the legal representatives, successors or assigns of such person.
  10. “Service mark” shall mean any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the services of one (1) person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person, and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor.
  11. “Trademark” shall mean any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the goods of such person, including a unique product, from those manufactured and sold by others, and to indicate the source of the goods, even if that source is unknown. (12) “Trade name” shall mean any name used by a person to identify a business or vocation of such person.

(13) “Use” shall mean the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For the purposes of this act, a mark shall be deemed to be in use: (a) on goods when it is placed in any manner on the goods or other containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and the goods are sold or transported in commerce in this state; and (b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this state.

History.

I.C.,§ 48-501, as added by 1996, ch. 404, § 2, p. 1336; am. 1999, ch. 168, § 2, p. 455.

STATUTORY NOTES

Prior Laws.

Former§ 48-501, which comprised 1965, ch. 305, § 1, p. 809; am. 1984, ch. 56, § 1, p. 95, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” throughout this section refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

RESEARCH REFERENCES

A.L.R.

A.L.R. — What constitutes “famous mark” for purposes of federal Trademark Dilution Act, 15 U.S.C. § 1125(c), which provides remedies for dilution of famous marks. 165 A.L.R. Fed. 625.

§ 48-502. Registrability.

  1. In order to be registered, a mark must have some element of distinctiveness, arbitrariness or uniqueness, which may be inherent to the mark or acquired through extended usage and establishment of a reputation.
  2. A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it:
    1. Consists of or comprises immoral, deceptive or scandalous matter; or
    2. Consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute; or
    3. Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof; or
    4. Consists of or comprises the name, signature or portrait identifying a particular living individual, except by the individual’s written consent;
    5. Consists of a mark which: (i) when used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them; or (ii) when used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or (iii) is primarily merely a surname, provided however, that nothing in this subsection shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods or services. The secretary of state may accept as evidence that the mark has become distinctive, as used on or in connection with the applicant’s goods or services, proof of continuous use thereof as a mark by the applicant in this state for the five (5) years before the date on which the claim of distinctiveness is made; or
    6. Consists of or comprises a mark which so resembles a mark registered in this state or a mark or trade name previously used by another and not abandoned, as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive.
History.

I.C.,§ 48-502, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-502, which comprised 1965, ch. 305, § 2, p. 809; am. 1984, ch. 56, § 2, p. 95, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

RESEARCH REFERENCES

A.L.R.

A.L.R. — Construction and Application of Trademark Registration Prohibition on Disparaging Marks Under 15 U.S.C. § 1052(a). 15 A.L.R. Fed. 3d 8.

§ 48-503. Application for registration.

Subject to the limitations set forth in this act, any person who uses a mark may file in the office of the secretary of state, in a form prescribed by the secretary of state, an application for registration of that mark setting forth, but not limited to, the following information:

  1. The name and business address of the person applying for such registration; and, if a corporation, limited liability company or partnership, the state of domestication, and if a partnership, the names of the general partners, as specified by the secretary of state;
  2. The goods or services on or in connection with which the mark is used and the mode or manner in which the mark is used on or in connection with such goods or services and the class in which such goods or services fall;
  3. The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or a predecessor in interest; and
  4. A statement that the applicant is the owner of the mark, that the mark is in use, and that, to the knowledge of the person verifying the application, no other person has registered, in this state, or has the right to use such mark either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods or services of such other person, to cause confusion, or to cause mistake, or to deceive.

The secretary of state may also require a statement as to whether an application to register the mark, or portions or a composite thereof, has been filed by the applicant or a predecessor in interest in the United States patent and trademark office; and, if so, the applicant shall provide full particulars with respect thereto including the filing date and serial number of each application, the status thereof and, if any application was finally refused registration or has otherwise not resulted in a registration, the reasons therefor.

The application shall be signed by the applicant or by a member of the firm or an officer of the corporation or association applying.

The application shall be accompanied by a drawing or one (1) specimen showing the mark as actually used, complying with such requirements as the secretary of state may specify.

The application shall be accompanied by the application fee payable to the secretary of state.

History.

I.C.,§ 48-503, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.
Compiler’s Notes.

The term “this act” in the first paragraph refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

For further information on the United States patent and trademark office, referred to in the undesignated paragraph following subsection (4), see https://www.uspto.gov .

§ 48-504. Filing of applications.

  1. Upon the receipt of an application for registration and payment of the application fee, the secretary of state shall cause the application to be examined for conformity with this chapter.
  2. The applicant shall provide any additional pertinent information requested by the secretary of state including a description of a design mark and may make, or authorize the secretary of state to make, such amendments to the application as may be reasonably requested by the secretary of state or deemed by the applicant to be advisable to respond to any rejection or objection.
  3. The secretary of state may require the applicant to disclaim an unregisterable component of a mark otherwise registerable, and an applicant may voluntarily disclaim a component of a mark sought to be registered. No disclaimer shall prejudice or affect the applicant’s or registrant’s rights then existing or thereafter arising in the disclaimed matter, or the applicant’s or registrant’s rights of registration on another application if the disclaimed matter is distinctive of the applicant’s or registrant’s goods or services.
  4. Amendments may be made by the secretary of state upon the application submitted by the applicant upon the applicant’s agreement, or the secretary of state may require a fresh application.
  5. If the applicant is found not to be entitled to registration, the secretary of state shall advise the applicant thereof and of the reasons therefor. The applicant shall have a reasonable period of time specified by the secretary of state in which to reply or to amend the application, in which event the application shall then be reexamined. This procedure may be repeated until: (a) the secretary of state finally refuses registration of the mark; or (b) the applicant fails to reply or amend within the specified period, whereupon the application shall be deemed to have been abandoned.
  6. If the secretary of state finally refuses registration of the mark, the applicant may appeal the denial of such registration to the district court in and for Ada county. The court may compel registration of the mark, but without cost to the secretary of state, on proof that all the statements in the application are true and that the mark is otherwise entitled to registration.
  7. In the instance of applications concurrently being processed by the secretary of state which seek registration of the same or confusingly similar marks for the same or related goods or services, the secretary of state shall grant priority to the applications in order of filing. If a prior-filed application is granted a registration, the other application or applications shall then be rejected. Any rejected applicant may bring an action for cancellation of the registration upon grounds of prior or superior rights to the mark, in accordance with the provisions of section 48-509, Idaho Code.
History.

I.C.,§ 48-504, as added by 1996, ch. 404, § 2, p. 1336; am. 2012, ch. 322, § 1, p. 881.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-504, which comprised 1965, ch. 305, § 4, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Amendments.

The 2012 amendment, by ch. 322, in subsection (1), substituted “receipt” for “filing”, “shall cause” for “may cause”, and “this chapter” for “this act.”

§ 48-505. Certificate of registration.

Upon compliance by the applicant with the requirements of this act, the secretary of state shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the secretary of state and the seal of the state, and it shall show the name and business address and, for a corporation, limited liability company or partnership, the state of domestication, and if a partnership, the names of the general partners, as specified by the secretary of state, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this state, the class of goods or services and a description of the goods or services on or in connection with which the mark is used, a reproduction of the mark, the registration date and the term of the registration.

Any certificate of registration issued by the secretary of state under the provisions hereof or a copy thereof duly certified by the secretary of state shall be admissible in evidence as competent and sufficient proof of the registration of such mark in any actions or judicial proceedings in any court of this state.

History.

I.C.,§ 48-505, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-505, which comprised 1965, ch. 305, § 5, p. 809; am. 1984, ch. 56, § 4, p. 95, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” in the first sentence in the first paragraph refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

§ 48-506. Duration and renewal.

  1. A registration of mark hereunder shall be effective for a term of ten (10) years from the date of registration and, upon application filed within six (6) months prior to the expiration of such term in a manner complying with the rules of the secretary of state, the registration may be renewed for a like term from the end of the expiring term.
  2. A renewal fee, payable to the secretary of state, shall accompany the application for renewal of the registration. When a renewal application includes goods or services which fall within multiple classes, the secretary of state may require payment of a fee for each class.
  3. A registration may be renewed for successive periods of ten (10) years in like manner and the secretary of state shall issue a certificate of renewal.
  4. Any registration in force on the date on which this act shall become effective shall continue in full force and effect for the unexpired term thereof and may be renewed by filing an application for renewal with the secretary of state in compliance with the rules of the secretary of state upon payment of the renewal fee within six (6) months prior to the expiration of the registration.
  5. All applications for renewal under this act, whether of registrations made under this act or of registrations effected under any prior act, shall include a statement that the mark has been and is still in use.
History.

I.C.,§ 48-506, as added by 1996, ch. 404, § 2, p. 1336; am. 2005, ch. 273, § 1, p. 841.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-506, which comprised 1965, ch. 305, § 6, p. 809; am. 1984, ch. 56, § 5, p. 95, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” throughout the last paragraph refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

The phrase “on the date on which this act shall become effective” in subsection (4) refers to the effective date of S.L. 1996, Chapter 404, which was July 1, 1996.

§ 48-507. Assignments, amendments, changes of name and other instruments.

  1. Any mark and its registration hereunder shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be filed with the secretary of state on a form provided by the secretary of state, upon the payment of the fee provided in section 48-517, Idaho Code, payable to the secretary of state who, upon filing of the assignment, shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under this act shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is filed with the secretary of state within three (3) months after the date thereof or prior to such subsequent purchase.
  2. Any registrant or applicant effecting a change of the name of the person to whom the mark was issued or for whom an application was filed may file an application for amendment with the secretary of state upon the payment of the filing fee. The secretary of state may issue to the owner a certificate of amendment of registration for the remainder of the term of the registration or last renewal thereof.
  3. Other instruments which relate to a mark registered or application pending pursuant to this act, such as, by way of example, licenses, security interests or mortgages, may be filed in the discretion of the secretary of state pursuant to rule, provided that such instrument is in writing and duly executed.
  4. Acknowledgment shall be prima facie evidence of the execution of an assignment or other instrument and, when filed by the secretary of state, the record shall be prima facie evidence of execution.
  5. A photocopy of any instrument referred to in subsection (1), (2), or (3) of this section, shall be accepted for filing.
History.

I.C.,§ 48-507, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.
Compiler’s Notes.

The term “this act” in subsections (1) and (3) refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

RESEARCH REFERENCES

ALR.

§ 48-508. Records.

The secretary of state shall keep for public examination a record of all marks registered or renewed under this act, as well as a record of all documents filed pursuant to section 48-507, Idaho Code, until disposed of in accordance with chapter 57, title 67, Idaho Code.

History.

I.C.,§ 48-508, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-508, which comprised 1965, ch. 305, § 8, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

§ 48-509. Cancellation.

The secretary of state shall cancel from the register, in whole or in part:

  1. Any registration concerning which the secretary of state receives a voluntary request for cancellation from the registrant or the assignee of record;
  2. All registrations granted under this act and not renewed in accordance with the provisions of this chapter;
  3. Any registration concerning which a court of competent jurisdiction shall find that:
    1. The registered mark has been abandoned;
    2. The registrant is not the owner of the mark;
    3. The registration was granted improperly;
    4. The registration was obtained fraudulently;
    5. The mark is or has become the generic name for the goods or services, or a portion thereof, for which it was registered;
    6. The registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in this state prior to the date of the filing of the application for registration by the registrant hereunder, and not abandoned; or
  4. When a court of competent jurisdiction orders cancellation of a registration on any ground.
History.

I.C.,§ 48-509, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-509, which comprised 1965, ch. 305, § 9, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” in subsection (2) refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

§ 48-510. Classification.

The secretary of state shall use the international classification of goods and services for convenience of administration of this act, but not to limit or extend the applicant’s or registrant’s rights, and a single application for registration of a mark may include any or all goods upon which, or services with which, the mark is actually being used indicating the appropriate class or classes of goods or services. When a single application includes goods or services which fall within multiple classes, the secretary of state may require payment of a fee for each class. To the extent practicable, the classification of goods and services shall conform to the classification adopted by the United States patent and trademark office. Applications for renewal shall be filed using the international classification of goods and services. A renewed registration shall be issued by the secretary of state, under the international classification of goods and services, if such renewal would not expand the registrant’s rights.

History.

I.C.,§ 48-510, as added by 1996, ch. 404, § 2, p. 1336; am. 2012, ch. 322, § 2, p. 881.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-510, which comprised 1965, ch. 305, § 10, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Amendments.

The 2012 amendment, by ch. 322, substituted “should conform” for “shall conform” in the third sentence, and rewrote the fourth and fifth sentences which formerly read: “Applications for renewal shall be filed using the classification of goods and services in effect when the trademark was approved by the secretary of state; provided that a registrant may request a renewed registration to be issued under the international classification of goods and services. When such a request is made, the secretary of state shall issue the renewed certificate as requested by the registrant if such renewal would not extend the registrant’s rights.”

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

For further information on the United States patent and trademark office, referred to in the third sentence, see https://www.uspto.gov .

For further information on the international classification of goods and services, referred to in the fourth sentence, see https://www.wipo.int/classifications/nice/en .

RESEARCH REFERENCES

ALR.

§ 48-511. Fraudulent registration.

Any person who shall for himself, or on behalf of any other person, procure the filing or registration of any mark in the office of the secretary of state under the provisions of this chapter, by knowingly making any false or fraudulent representation or declaration, orally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.

History.

I.C.,§ 48-511, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 48-511, which comprised 1965, ch. 305, § 11, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

§ 48-512. Infringement.

Subject to the provisions of section 48-516, Idaho Code, any person who shall:

  1. Use, without the consent of the registrant, any reproduction, counterfeit, copy or colorable imitation of a mark registered under this act in connection with the sale, distribution, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
  2. Reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this state of such goods or services, shall be liable in a civil action by the registrant for any and all of the remedies provided in section 48-514, Idaho Code, except that under this subsection the registrant shall not be entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive.
History.

I.C.,§ 48-512, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Prior Laws.

Former§ 48-512, which comprised 1965, ch. 305, § 12, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” in subsection (1) refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

CASE NOTES

Likelihood of Confusion.

In an action by a veterinarian against a national pet store chain for trademark infringement related to the phrase, “Where Pets are Family,” the court found no likelihood of confusion and, therefore, granted summary judgment to the pet store chain; although the parties indisputably sold related goods and services and the pet store chain’s extensive advertising gave it the ability to overwhelm any public recognition and goodwill that the veterinarian had developed in the mark, the court noted that both parties use the trademark merely as a tagline to their distinctive business names, that their marketing efforts were concentrated in different media, that there was no evidence of actual confusion, and reasonably attentive pet owners should be particularly attentive in selecting a veterinarian for their family pets and, thus, were likely to perceive the differences between a veterinary clinic and the pet store chain. Cohn v. Petsmart, Inc., 281 F.3d 837 (9th Cir. 2002).

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state trademark counterfeiting statutes. 63 A.L.R.6th 303.

Parody as trademark or tradename dilution or infringement. 179 A.L.R. Fed. 181.

Initial interest confusion doctrine under Lanham Trademark Act. 183 A.L.R. Fed. 553.

Application of doctrine of “reverse passing off” under Lanham Act. 194 A.L.R. Fed. 175.

Lanham Act trademark infringement actions in internet and website context. 197 A.L.R. Fed. 17.

Nominative Fair Use Defense in Trademark Law. 84 A.L.R. Fed. 2d 217.

§ 48-513. Injury to business reputation — Dilution.

The owner of a mark which is famous in this state shall be entitled, subject to the principles of equity, to an injunction against another’s use of a mark, commencing after the owner’s mark becomes famous, which causes dilution of the distinctive quality of the owner’s mark, and to obtain such other relief as is provided in this section. In determining whether a mark is famous, a court may consider factors such as, but not limited to:

  1. The degree of inherent or acquired distinctiveness of the mark in this state;
  2. The duration and extent of use of the mark in connection with the goods and services;
  3. The duration and extent of advertising and publicity of the mark in this state;
  4. The geographical extent of the trading area in which the mark is used;
  5. The channels of trade for the goods or services with which the owner’s mark is used;
  6. The degree of recognition of the owner’s mark in its and in the other’s trading areas and channels of trade in this state; and
  7. The nature and extent of use of the same or similar mark by third parties.

The owner shall be entitled only to injunctive relief in this state in an action brought under this section, unless the subsequent user willfully intended to trade on the owner’s reputation or to cause dilution of the owner’s mark. If such willful intent is proven, the owner shall also be entitled to the other remedies provided in this chapter, subject to the discretion of the court and the principles of equity.

History.

I.C.,§ 48-513, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Prior Laws.

Former§ 48-513, which comprised 1965, ch. 305, § 13, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

RESEARCH REFERENCES

ALR.

What constitutes “famous mark” for purposes of federal Trademark Dilution Act, 15 U.S.C. § 1125(c), which provides remedies for dilution of famous marks. 165 A.L.R. Fed. 625.

§ 48-514. Remedies.

Any owner of a mark registered under this act may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and all damages suffered by reason of such wrongful manufacture, use, display or sale. The court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in the case be delivered to an officer of the court, or to the complainant, to be destroyed. The court, in its discretion, may enter judgment for an amount not to exceed three (3) times such profits and damages and may award reasonable attorney’s fees and costs of suit to the prevailing party in such cases where the court finds the other party committed the wrongful acts with knowledge or in bad faith or otherwise, as the circumstances of the case may warrant.

The enumeration of any right or remedy herein shall not affect a registrant’s right to prosecute under any criminal law of this state.

History.

I.C.,§ 48-514, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Prior Laws.

Former§ 48-514, which comprised 1965, ch. 305, § 14, p. 809, was repealed by S.L. 1996, ch. 404, § 1, effective July 1, 1996.

Compiler’s Notes.

The term “this act” in the first sentence in the first paragraph refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

§ 48-515. Forum for actions regarding registration — Service on out-of-state registrants.

  1. Actions to require cancellation of a mark registered pursuant to this act or to appeal the denial of registration of a mark pursuant to this act shall be brought in the district court in and for Ada county. In an action to compel registration, the proceeding shall be based solely upon the record before the secretary of state. In an action for cancellation, the secretary of state shall not be made a party to the proceeding but shall be notified of the filing of the complaint by the clerk of the court in which it is filed and shall be given the right to intervene in the action.
  2. In any action brought against a nonresident registrant, service may be effected upon the secretary of state as agent for service of the registrant in accordance with the procedures established for service upon nonresident corporations and business entities under the Idaho rules of civil procedure.
History.

I.C.,§ 48-515, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

The term “this act” in the first sentence in subsection (1) refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

§ 48-516. Common law rights.

Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.

History.

I.C.,§ 48-516, as added by 1996, ch. 404, § 2, p. 1336.

§ 48-517. Fees.

The secretary of state shall charge thirty dollars ($30.00) for the various applications and filing fees required in this chapter and for related services. The application fee payable herein shall be refunded if the registration for a mark is not granted.

History.

I.C.,§ 48-517, as added by 1996, ch. 404, § 2, p. 1336; am. 1999, ch. 211, § 2, p. 562.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

§ 48-518. Time of taking effect — Repeal of prior acts — Intent of act.

This act shall be in force and effect on July 1, 1996, but shall not affect any suit, proceeding or appeal then pending. All acts relating to marks and parts of any other acts inconsistent herewith are hereby repealed on the effective date of this act, provided that as to any application, suit, proceeding or appeal, and for that purpose only, pending at the time this act takes effect the repeal shall be deemed not to be effective until final determination of said pending application, suit, proceeding or appeal.

The intent of this act is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the trademark act of 1946, as amended. To that end, the construction given the federal act should be examined as persuasive authority for interpreting and construing this act.

History.

I.C.,§ 48-518, as added by 1996, ch. 404, § 2, p. 1336.

STATUTORY NOTES

Federal References.

The trademark act of 1946, referred to in the second paragraph, is generally compiled as 15 U.S.C.S. § 1051 et seq.

Compiler’s Notes.

The term “this act” throughout the section refers to S.L. 1996, Chapter 404, which is compiled as§§ 48-501 to 48-518.

The phrase “the effective date of this act” in the first paragraph refers to the effective date of S.L. 1996, Chapter 404, which was effective July 1, 1996.

Chapter 6 CONSUMER PROTECTION ACT

Sec.

§ 48-601. Short title and purpose.

This act shall be known and may be cited as the “Idaho consumer protection act”. The purpose of this act is to protect both consumers and businesses against unfair methods of competition and unfair or deceptive acts and practices in the conduct of trade or commerce, and to provide efficient and economical procedures to secure such protection. It is the intention of the legislature that this chapter be remedial and be so construed.

History.

1971, ch. 181, § 2, p. 847; am. 1990, ch. 273, § 1, p. 766.

STATUTORY NOTES

Cross References.

Chain or pyramid distributor schemes, prohibited, penalties,§ 18-3101.

Prior Laws.

Former Chapter 6 which comprised S.L. 1965, ch. 293, §§ 1 to 6, was repealed by S.L. 1971, ch. 181, § 1.

Compiler’s Notes.

The term “this act” refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

CASE NOTES

Application.

The Idaho consumer protection act does not expressly include or exclude commercial transactions and is applicable to protect the ultimate consumer of a product, who intends to use it in a for-profit business. Myers v. A.O. Smith Harvestore Prods., Inc., 114 Idaho 432, 757 P.2d 695 (Ct. App. 1988). Individuals selling real property for investment were subject to this chapter, although they were not in the business of selling such property as owners or brokers where the real property was within the definition of “goods” in§ 48-602(6) and its sale was “trade” or “commerce.” White v. Mock, 140 Idaho 882, 104 P.3d 356 (2004).

Collection of Debts.

The collection of debts arising from sales of goods and services is subject to the provisions of this chapter. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

In General.

This chapter prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce within the State of Idaho. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Instruction.
— Harmless Error.

Where, although the jury was not instructed under this chapter, it was instructed regarding the common law fraud claims and the plaintiffs presented no sound basis for a jury to reach a different result under this chapter, the court’s refusal to present a claim under this chapter to the jury, even if error, constituted harmless error. Myers v. A.O. Smith Harvestore Prods., Inc., 114 Idaho 432, 757 P.2d 695 (Ct. App. 1988).

Legislative Intent.

The intent of the legislature is that this chapter be liberally construed to effect the legislative intent to deter deceptive or unfair trade practices and to provide relief for consumers exposed to proscribed practices. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Medical Malpractice.

Plaintiffs must proceed in a medical malpractice action under the negligence standard set forth in§ 6-1012; therefore, the plaintiffs could not bring a cause of action under this chapter for the defendants failure to provide adequate health care after holding themselves out as being knowledgeable and capable of providing adequate health care. Keyser v. St. Mary’s Hosp., 662 F. Supp. 191 (D. Idaho 1987).

Price Negotiations.
Statutory Damages.

Where the testimony of 15 consumers and two salesmen for a water conditioner salesman indicated that no price negotiations or bargaining occurred during the sale of water conditioner units, and other evidence indicated that all the units sold in the state were sold at the same so-called special discount price, the evidence did not support the trial court’s finding that the price of the water conditioners was subject to negotiation or bargaining. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980). Statutory Damages.

In a property sale dispute, the trial court’s failure to award statutory damages for a violation of this chapter was error. White v. Mock, 140 Idaho 882, 104 P.3d 356 (2004).

Written Sales Presentation.

Where in an action brought by the attorney general under this chapter, 15 consumers testified that they purchased water conditioner units from salesmen who read verbatim from a written script prepared by the manufacturer or that the salesmen delivered what appeared to be a memorized sales presentation, and several salesmen testified that the written sales presentation was used in all their sales, the evidence did not support the trial court’s finding that the complaints of the individual consumers who testified at the trial could not be correlated with all sales made by the defendants. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Cited

Irwin Rogers Ins. Agency, Inc. v. Murphy, 122 Idaho 270, 833 P.2d 128 (Ct. App. 1992); Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001); Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 329 P.3d 356 (2014).

RESEARCH REFERENCES

ALR.

Judicial Remedies for Proceeds and Funds from Ponzi Schemes. 100 A.L.R.6th 281.

§ 48-602. Definitions.

As used in this act:

  1. “Person” means natural persons, corporations both foreign and domestic, trusts, partnerships both limited and general, incorporated or unincorporated associations, companies, trusts, business entities, and any other legal entity, or any other group associated in fact although not a legal entity or any agent, assignee, heir, employee, representative or servant thereof.
  2. “Trade” and “commerce” mean the advertising, offering for sale, selling, leasing, renting, collecting debts arising out of the sale or lease of goods or services or distributing goods or services, either to or from locations within the state of Idaho, or directly or indirectly affecting the people of this state.
  3. “Documentary material” means the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, audio and/or visual recording, mechanical, photographic, or electronic transcription or other tangible document or recording.
  4. “Examination” of documentary material shall include the inspection, study, or copying of any such material, and the taking of testimony under oath or acknowledgment in respect of any such documentary material or copy thereof.
  5. “Appropriate trade premises,” mean premises at which either the owner or seller normally carries on a business, or where goods are normally offered or exposed for sale in the course of a business carried on at those premises.
  6. “Goods” mean any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, including certificates or coupons exchangeable for such goods.
  7. “Services” mean work, labor or any other act or practice provided or performed by a seller to or on behalf of a consumer.
  8. “Actions or transactions permitted under laws administered by a regulatory body or officer” mean specific acts, practices or transactions authorized by a regulatory body or officer pursuant to a contract, rule or regulation, or other properly issued order, directive or resolution.
  9. “Regulatory body or officer” means any person or governmental entity with authority to act pursuant to state of Idaho or federal statute.
History.

1971, ch. 181, § 3, p. 847; am. 1973, ch. 285, § 1, p. 601; am. 1993, ch. 102, § 1, p. 256.

STATUTORY NOTES

Prior Laws.

Former§ 48-602 was repealed. See Prior Laws,§ 48-601.

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

CASE NOTES

Misrepresentations.

In action by plaintiff who had purchased property from third party, against original owners, who had sold property to third party, claiming that fence lines’ failure to match property described in deed was a material misrepresentation, the court found that there was no actionable misrepresentation under this chapter, because there was no difference between what purchaser received and the metes and bounds description in the contract. Fenn v. Noah, 142 Idaho 775, 133 P.3d 1240 (2006).

“Sale” As Crucial Event.

The collection of a debt arising out of a sale of goods or services is subject to the provisions of this chapter, even when the collection of the debt is by a third party who has purchased the debt from the seller; it is the sale that brings the debt into existence that is the crucial event, and debts that do not arise out of the sale of goods and services subject to the provisions of this chapter are not covered. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Trade.

The company, which specialized in purchasing structured personal injury and other settlement payment streams for cash and then reselling the settlements or annuities for a profit, engaged in trade or commerce as provided under subsection (2) of this section, where the company attempted to purchase annuity payments for profit, and where the company advertised its product through use of television commercials. Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001).

Individuals selling real property for investment were subject to this chapter, although they were not in the business of selling such property as owners or brokers where the real property was within the definition of “goods” and its sale was “trade” or “commerce.” White v. Mock, 140 Idaho 882, 104 P.3d 356 (2004).

Cited

Myers v. A.O. Smith Harvestore Prods., Inc., 114 Idaho 432, 757 P.2d 695 (Ct. App. 1988); Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 329 P.3d 356 (2014).

§ 48-603. Unfair methods and practices.

The following unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared to be unlawful, where a person knows, or in the exercise of due care should know, that he has in the past, or is:

  1. Passing off goods or services as those of another;
  2. Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
  3. Causing likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;
  4. Using deceptive representations or designations of geographic origin in connection with goods or services;
  5. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, connection, qualifications or license that he does not have;
  6. Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
  7. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
  8. Disparaging the goods, services, or business of another by false or misleading representation of fact;
  9. Advertising goods or services with intent not to sell them as advertised;
  10. Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
  11. Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions;
  12. Obtaining the signature of the buyer to a contract when it contains blank spaces to be filled in after it has been signed;
  13. Failing to deliver to the consumer at the time of the consumer’s signature a legible copy of the contract or of any other document which the seller or lender has required or requested the buyer to sign, and which he has signed, during or after the contract negotiation;
  14. Making false or misleading statements of fact concerning the age, extent of use, or mileage of any goods;
  15. Promising or offering to pay, credit or allow to any buyer or lessee, any compensation or reward in consideration of his giving to the seller or lessor the names of prospective purchasers or lessees, or otherwise aiding the seller or lessor in making a sale or lease to another person, if the earning of the rebate, discount or other value is contingent upon the occurrence of an event subsequent to the time the buyer or lessee agrees to buy or lease;
  16. Representing that services, replacements or repairs are needed if they are not needed, or providing services, replacements or repairs that are not needed;
  17. Engaging in any act or practice which is otherwise misleading, false, or deceptive to the consumer; (18) Engaging in any unconscionable method, act or practice in the conduct of trade or commerce, as provided in section 48-603C, Idaho Code, provided, however, that the provisions of this subsection shall not apply to a regulated lender as that term is defined in section 28-41-301, Idaho Code;
    1. A comparison between the price paid by the alleged violator for the fuel, food, pharmaceuticals, or water and the price for which the alleged violator sold those same items to the ultimate consumer immediately before and after the period specified by the disaster or emergency declaration;
    2. Additional costs of doing business incurred by the alleged violator because of the disaster or emergency;
    3. The duration of the disaster or emergency declaration.

(19) Taking advantage of a disaster or emergency declared by the governor under chapter 10, title 46, Idaho Code, or the president of the United States under the provisions of the disaster relief act of 1974, 42 U.S.C. section 5121 et seq., by selling or offering to sell to the ultimate consumer fuel or food, pharmaceuticals, or water for human consumption at an exorbitant or excessive price; provided however, this subsection shall apply only to the location and for the duration of the declaration of emergency. In determining whether a price is exorbitant or excessive, the court shall take into consideration the facts and circumstances including, but not limited to:

Notwithstanding anything to the contrary contained elsewhere in the act, no private cause of action exists under this subsection.

History.

1971, ch. 181, § 4, p. 847; am. 1973, ch. 285, § 2, p. 601; am. 1990, ch. 273, § 2, p. 766; am. 2002, ch. 358, § 1, p. 1015; am. 2002, ch. 361, § 2, p. 1019; am. 2013, ch. 54, § 16, p. 108.

STATUTORY NOTES

Prior Laws.

Former§ 48-603 was repealed. See Prior Laws,§ 48-601.

Amendments.

This section was amended by two 2002 acts which appear to be compatible and have been compiled together.

The 2002 amendment by ch. 358, § 1, effective July 1, 2002, in subsection (19), inserted “to the ultimate consumer” following “by selling or offering to sell”, substituted “pharmaceuticals” for “medicine” following “fuel or food”; added “In determining whether a price is exorbitant or excessive, the court shall take into consideration the facts and circumstances, including, but not limited to:”; added subsections 19(a), (b), (c); and added the last sentence.

The 2002 amendment by ch. 361, § 2, effective March 27, 2002, added the semicolon at the end of subsection (18) and added subsection (19).

The 2013 amendment, by ch. 54, deleted “subsection (37) of” preceding “section 28-41-301, Idaho Code” near the end of subsection (18).

Legislative Intent.

Section 1 of S.L. 2002, ch. 361 provides: “The Legislature finds that during emergencies or disasters, some persons may take unfair advantage of consumers by greatly increasing prices for essential goods and services. While the pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, when a declared state of emergency or disaster results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of essential consumer goods and services be prohibited.”

Compiler’s Notes.

The term “this act” in the last paragraph refers to S.L. 2002, Chapter 358, which is compiled as this section only. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

CASE NOTES

Contract or Other Document.
— Failure to Deliver.

Insurance company’s failure to give insured a copy of a promissory note signed by insured did not violate this chapter; the debt underlying the promissory note arose from the purchase of insurance through an insurance agency which is a sale explicitly excluded from this chapter. Irwin Rogers Ins. Agency, Inc. v. Murphy, 122 Idaho 270, 833 P.2d 128 (Ct. App. 1992).

Employer’s Violations.

District court did not err by granting the former employer summary judgment on a former at-will employee’s claim that she was terminated in violation of public policy, based on the employer’s alleged violations of the Idaho Consumer Protection Act, because the employee failed to establish that she was engaged in a protected activity, and she failed to identify any specific instance of her own refusal to engage in an illegal act. Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 329 P.3d 356 (2014).

Goods.

Although “goods” defined under the act include intangible property which could encompass money, it would take a strained construction of the act to be able to hold that the signing of a personal guarantee for a loan to a corporation was “purchase of goods.” Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979).

Legislative Intent.

The intent of the legislature is that this chapter be liberally construed to effect the legislative intent to deter deceptive or unfair trade practices and to provide relief for consumers exposed to proscribed practices. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Liability for Sales Program.

Where Master Manufacturing Company created and furnished the sales program utilized by Master Distributors in Idaho, participated in the hiring and training of Master Distributors’ sales personnel, was involved on a nearly daily basis with the ongoing operation of the sales program in Idaho, and knowingly distributed its products in Idaho through Master Distributors, Inc., Master Manufacturing Company was subject to liability under this chapter for any unfair or deceptive practices utilized in the Idaho sales program. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Misrepresentations.

In action by plaintiff who had purchased property from third party, against original owners, who had sold property to third party, claiming that fence lines’ failure to match property described in deed was a material misrepresentation, the court found that there was no actionable misrepresentation under this chapter, because there was no difference between what purchaser received and the metes and bounds description in the contract. Fenn v. Noah, 142 Idaho 775, 133 P.3d 1240 (2006).

Because a creditor who sued his debtors’ attorneys did not allege that he entered into a contractual relationship with the attorneys, he lacked standing under§ 48-608(1); moreover, he failed to identify specific prohibited actions deemed to be unfair or deceptive, as set forth in§§ 48-603 to 48-603E. Taylor v. McNichols, 149 Idaho 826, 243 P.3d 642 (2010).

“Sale” as Crucial Event.

The collection of a debt arising out of a sale of goods or services is subject to the provisions of this chapter, even when the collection of the debt is by a third party who has purchased the debt from the seller; it is the sale that brings the debt into existence that is the crucial event, and debts that do not arise out of the sale of goods and services subject to the provisions of the chapter are not covered. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Services.
Tendency to Deceive.

Trial court erred in dismissing an owner’s complaint for failure to prove liability and the owner was entitled to entitled to compensatory damages and attorneys’ fees, because the district court found that there was a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages and he was not required to prove liability where his allegations for breach of contract and violation of the Idaho Consumer Protection Act were admitted by an agent and his company as being true. Pierce v. McMullen, 156 Idaho 465, 328 P.3d 445 (2014). Tendency to Deceive.

An act or practice is unfair if it is shown to possess a tendency or capacity to deceive consumers, and neither proof of an intention to deceive nor any actual damage to the public need be shown in order to establish a trade practice as unfair or deceptive. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Trade Names.

The unauthorized advertising, display and/or sale by defendant of merchandise bearing plaintiffs’ “private label” trade-names and/or trade-marks constituted unfair and deceptive trade practices in violation of this section. J.C. Penney Co. v. Parrish Co., 339 F. Supp. 726 (D. Idaho 1972).

Unconscionable Conduct.

In a case of alleged price-fixing by manufacturers, the district court, after dismissing an unfair competition claim, did not err in denying the state’s request to amend its complaint to allege a consumer protection claim; price-fixing of products that are not sold directly to consumers is not an unconscionable act within the meaning of this section, which addresses the prevention of outrageous transactions involving vulnerable consumers. State v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 106 P.3d 428 (2005).

Well driller misled landowners by providing them with unneeded drilling services; the well was drilled much deeper than necessary and the driller continued to drill after encountering low temperature geothermal conditions which were not appropriate for a cold water domestic use well. Duspiva v. Fillmore, 154 Idaho 27, 293 P.3d 651 (2013).

The selling of gift cards or vouchers with expiration dates clearly marked on them was not fraudulent, deceptive, or misrepresentative in any manner. Doble v. Interstate Amusements, Inc., 160 Idaho 307, 372 P.3d 362 (2016), cert. denied, — U.S. —, 137 S. Ct. 343, 196 L. Ed. 2d 263 (2016).

Cited

McNeil v. Gisler, 100 Idaho 693, 604 P.2d 707 (1979); Yellow Pine Water User’s Ass’n v. Imel, 105 Idaho 349, 670 P.2d 54 (1983); Telford v. Smith County, 155 Idaho 497, 314 P.3d 179 (2013).

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like. 83 A.L.R.6th 419.

§ 48-603A. Unfair solicitation practices.

  1. It is unlawful for any person to solicit a sale or order for sale of goods or services at other than appropriate trade premises, in person or by means of telephone, without clearly, affirmatively and expressly revealing at the time the person initially contacts the prospective buyer, and before making any other statement, except a greeting, or asking the prospective buyer any other questions, that the purpose of the contact is to effect a sale, by doing all of the following:
    1. Stating the identity of the person making the solicitation;
    2. Stating the trade name of the person represented by the person making the solicitation;
    3. Stating the kind of goods or services being offered for sale;
    4. And, in the case of an “in person” contact, the person making the solicitation shall, in addition to meeting the requirements of paragraphs (a), (b) and (c) of this section, show or display identification which states the information required by paragraphs (a) and (b) of this section as well as the address of the place of business of one (1) of such persons so identified.
  2. It is unlawful for any person, in soliciting a sale or order for the sale of goods or services at other than his appropriate trade premises, in person or by telephone, to use any plan, scheme, or ruse which misrepresents his true status or mission for the purpose of making such sale or order for the sale of goods or services.
  3. It is unlawful in the sale or offering for sale of goods or services for any person conducting a mail order or catalog business in this state and utilizing a post office box address to fail to disclose the legal name under which business is done and the complete street address from which business is actually conducted in all advertising and promotional materials, including order blanks and forms.
History.

I. C.,§ 48-603A, as added by 1973, ch. 285, § 3, p. 601.

§ 48-603B. Unfair tax return preparation practices.

  1. As used in this section, unless the context otherwise requires:
    1. “Tax preparer” means a person who, for a fee, engages in the business of assisting with, or preparing, federal, state, or local government income tax returns.
    2. “Fee” means any moneys or valuable consideration paid or promised to be paid for services rendered or to be rendered by any person or persons functioning as or conducting the business of a tax preparer.
  2. The following acts or omissions related to the conduct of the business of the tax preparer, which are done by the tax preparer or any employee, partner, officer, or member of the tax preparer are unlawful:
    1. Making or authorizing in any manner or by any means whatever any statement written or oral which is untrue or misleading.
    2. Causing or allowing a consumer to sign any document in blank relating to a tax return thereof.
    3. Failing or refusing to give to a consumer a copy of any document requiring his signature, as soon as the consumer signs such document.
    4. Failing to maintain a copy of any tax return prepared for a consumer for the applicable statute of limitation period on federal tax returns and state tax returns.
    5. Making false promises of a character likely to influence, persuade, or induce a consumer to authorize the tax preparation service.
    1. It is unlawful for any person, including an individual, firm, corporation, association, partnership, joint venture, or any employee or agent therefor, to use or disclose any information obtained in the business of preparing federal or state income tax returns or assisting taxpayers in preparing such returns unless such use or disclosure is within any of the following: (3)(a) It is unlawful for any person, including an individual, firm, corporation, association, partnership, joint venture, or any employee or agent therefor, to use or disclose any information obtained in the business of preparing federal or state income tax returns or assisting taxpayers in preparing such returns unless such use or disclosure is within any of the following:
      1. Consented to in writing by the taxpayer in a separate document.
      2. Expressly authorized by state or federal law.
      3. Necessary to the preparation of the return.
      4. Pursuant to court order.
      5. Prepares or assists others in the preparation of state or federal income tax returns for compensation.
    2. For the purposes of this section, a person is engaged in the business of preparing federal or state income tax returns or assisting taxpayers in preparing such returns if he does either of the following:
    3. Advertises, or gives publicity to the effect that he prepares or assists others in the preparation of state or federal income tax returns.
    1. It is unlawful for any person, including any individual, association, partnership, joint venture, or any employee or agent therefor, to fail to sign any state income tax return, or to fail to include his name, address, and social security number or preparer identification number issued under 26 U.S.C. 6109 on any state income tax return, which he prepares for another for compensation, or which he assists another in the preparation of for compensation. (4)(a) It is unlawful for any person, including any individual, association, partnership, joint venture, or any employee or agent therefor, to fail to sign any state income tax return, or to fail to include his name, address, and social security number or preparer identification number issued under 26 U.S.C. 6109 on any state income tax return, which he prepares for another for compensation, or which he assists another in the preparation of for compensation.
    2. It is unlawful for any corporation to fail to include its name and address on any state income tax return which it prepares for another for compensation, or which it assists another in the preparation of for compensation. (5) A person who renders mere mechanical assistance in the preparation of a return, declaration, statement, or other document is not considered, for the purposes of this section, as preparing the return, declaration, statement or other document.
History.

I.C.,§ 48-603B, as added by 1973, ch. 285, § 4, p. 601; am. 1993, ch. 102, § 2, p. 256; am. 2000, ch. 26, § 2, p. 45.

STATUTORY NOTES

Effective Dates.

Section 8 of S.L. 2000, ch. 26 declared an emergency retroactively to January 1, 2000 and approved March 3, 2000.

§ 48-603C. Unconscionable methods, acts or practices.

  1. Any unconscionable method, act or practice in the conduct of any trade or commerce violates the provisions of this chapter whether it occurs before, during, or after the conduct of the trade or commerce.
  2. In determining whether a method, act or practice is unconscionable, the following circumstances shall be taken into consideration by the court:
    1. Whether the alleged violator knowingly or with reason to know, took advantage of a consumer reasonably unable to protect his interest because of physical infirmity, ignorance, illiteracy, inability to understand the language of the agreement or similar factor;
    2. Whether, at the time the consumer transaction was entered into, the alleged violator knew or had reason to know that the price grossly exceeded the price at which similar goods or services were readily available in similar transactions by similar persons, although price alone is insufficient to prove an unconscionable method, act or practice;
    3. Whether the alleged violator knowingly or with reason to know, induced the consumer to enter into a transaction that was excessively one-sided in favor of the alleged violator;
    4. Whether the sales conduct or pattern of sales conduct would outrage or offend the public conscience, as determined by the court.
History.

I.C.,§ 48-603C, as added by 1990, ch. 273, § 3, p. 766.

CASE NOTES

Price Fixing.

In a case of alleged price-fixing by manufacturers, the district court, after dismissing an unfair competition claim, did not err in denying the state’s request to amend its complaint to allege a consumer protection claim; price-fixing of products that are not sold directly to consumers is not an unconscionable act within the meaning of this section, which addresses the prevention of outrageous transactions involving vulnerable consumers. State v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 106 P.3d 428 (2005).

Cited

Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001); Garcia v. Absolute Bail Bonds, LLC, 161 Idaho 616, 389 P.3d 161 (2016).

§ 48-603D. Unfair telephone services — Unordered goods and services — Disclosure to consumers.

  1. As used in this section:
    1. “Telecommunications provider” means a person that provides telecommunications service.
    2. “Telecommunications service” means the offering for sale of the conveyance of voice, data or other information at any frequency over any part of the electromagnetic spectrum. Telecommunications service does not include cable television service or broadcast service.
    3. “Telecommunications service agreement” means a contract between the telecommunications provider and a consumer for telecommunications service that is provided to the consumer on a continuing or periodic basis. The term includes an oral, written, or electronically recorded contract, and includes any material amendment to an existing contract.
    1. Section 48-605, Idaho Code, notwithstanding, it is unlawful for a telecommunications provider to request a change in a consumer’s local exchange or interexchange carrier without the consumer’s verified consent. (2)(a) Section 48-605, Idaho Code, notwithstanding, it is unlawful for a telecommunications provider to request a change in a consumer’s local exchange or interexchange carrier without the consumer’s verified consent.
    2. For purposes of subsection (2)(a) of this section:
      1. It is the responsibility of the telecommunications provider requesting a change in a telephone service subscriber’s local exchange or interexchange carrier to verify that the consumer has authorized the change. A telecommunications provider that does not verify a consumer’s change in his or her local exchange or interexchange carrier in accordance with the verification procedures, if any, adopted by the federal communications commission under the telecommunications act of 1996, including subpart K of 47 CFR 64, as those procedures are from time to time amended, commits an unlawful practice within the meaning of this act. A telephone company, wireless carrier or telecommunications carrier providing local exchange service who has been requested by another telecommunications provider to process a change in a consumer’s carrier is only liable under this section if it knowingly participates in processing a requested change that is unauthorized or not properly verified; and
      2. Compliance with applicable federal verification procedures is a complete defense to an allegation of consumer fraud under subsection (2)(a) of this section.
    1. Section 48-605, Idaho Code, notwithstanding, it is unlawful for a telecommunications provider to bill a consumer for goods or services that are in addition to the consumer’s telecommunications services without the consumer’s authorization adding the goods or services to the consumer’s service order. (3)(a) Section 48-605, Idaho Code, notwithstanding, it is unlawful for a telecommunications provider to bill a consumer for goods or services that are in addition to the consumer’s telecommunications services without the consumer’s authorization adding the goods or services to the consumer’s service order.
    2. For purposes of subsection (3)(a) of this section, a telephone company or telecommunications carrier providing billing services for another telecommunications provider is only liable under this section if it knowingly participates in billing a consumer for goods or services without the consumer’s authorization for the addition of those goods or services to the consumer’s service order.
    1. A telecommunications provider shall be solely responsible for providing written notice to a consumer who has agreed to enter into a telecommunications service agreement with the telecommunications provider. (4)(a) A telecommunications provider shall be solely responsible for providing written notice to a consumer who has agreed to enter into a telecommunications service agreement with the telecommunications provider.
    2. The notice shall clearly and conspicuously disclose to the consumer that the consumer’s local exchange or interexchange carrier has been changed. The notice shall also advise the consumer that the consumer may change back to the previous carrier or select a new carrier by calling the previous carrier or the consumer’s preferred carrier. The notice shall also provide the consumer with a toll-free number to call for further information.
    3. The notice shall be sent on or before the fifteenth day after the consumer enters into the telecommunications service agreement, or on or before the day the telecommunications provider first bills the consumer under the agreement, whichever is later.
    4. The notice must be a separate document sent for the sole purpose of advising the consumer of his or her entering into a telecommunications service agreement. The notice shall also not be combined with any sweepstakes entry form in the same document or other like inducement.
    5. The sending of this notice shall not constitute a defense to a charge that a consumer did not consent to enter into a telecommunications service agreement or that the consumer’s consent was verified according to federal law.
    6. Compliance with the notification requirements, if any, adopted by the federal communications commission under the telecommunications act of 1996, including subpart K of 47 CFR 64, shall be deemed to be compliance with this subsection.
    7. A consumer who selects a different carrier within three (3) days after receiving the notice under subsection (4)(a) of this section may not be charged a cancellation charge or disconnect fee unless the consumer has more than five (5) telephone lines and has entered into a written agreement which specifies such charges and fees, and the telecommunications provider has complied with the verification procedures under subsection (2)(b) of this section.
History.

I.C.,§ 48-603D, as added by 1998, ch. 274, § 1, p. 904.

STATUTORY NOTES

Federal References.

The telecommunications act of 1996, referred to in paragraph (2)(b)(i) and paragraph (4)(f), generally appears as 47 U.S.C.S. § 151.

Compiler’s Notes.

The term “this act” at the end of the second sentence in paragraph (2)(b)(i) refers to S.L. 1998, Chapter 274, which is codified as this section. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

Effective Dates.

Section 2 of S.L. 1998, ch. 274 declared an emergency. Approved March 24, 1998.

§ 48-603E. Unfair bulk electronic mail advertisement practices.

  1. For purposes of this section, unless the context otherwise requires:
    1. “Bulk electronic mail advertisement” means an electronic message, containing the same or similar advertisement, which is contemporaneously transmitted to two (2) or more recipients, pursuant to an internet or intranet computer network.
    2. “Computer network” means a set of related, remotely connected devices and communication facilities, including two (2) or more computers, with the capability to transmit data among them through communication facilities.
    3. “Interactive computer service” means an information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet, and such systems operated or services offered by a library or an educational institution.
    4. “Recipient” means a person who receives any bulk electronic mail advertisements.
  2. Any person who uses an interactive computer service to initiate or cause the sending or transmittal of any bulk electronic mail advertisement shall provide an electronic mail address readily identifiable in the bulk electronic mail advertisement to which the recipient may send a request for declining such mail.
  3. It is unlawful for a person to use an interactive computer service to initiate or cause the sending or transmittal of any bulk electronic mail advertisement to any recipient that the sender knows, or has reason to know, engages in any of the following:
    1. Uses the name of a fictitious name of a third party in the return address field without the permission of the third party.
    2. Misrepresents any information in identifying the point of origin of the transmission path of the bulk electronic mail advertisement.
    3. Fails to contain information identifying the point of origin of the transmission path of the bulk electronic mail advertisement.
    4. Sends or transmits, at any time after five (5) business days of a declination, any bulk electronic mail advertisement to a recipient who provided the sender with a request declining the receipt of such advertisements.
  4. Pursuant to section 48-608, Idaho Code, a recipient that receives a bulk electronic mail advertisement in violation of this section may bring an action to recover actual damages. The recipient, in lieu of actual damages, may elect to recover from the person transmitting or causing to be transmitted such bulk electronic mail advertisement the greater of one hundred dollars ($100) for each bulk electronic mail advertisement transmitted to the recipient in violation of this section or one thousand dollars ($1,000).
  5. This section does not apply to any of the following:
    1. A person, including an interactive computer service, who provides users with access to a computer network, and as part of that service, transmits electronic mail on behalf of those users, unless such person transmits bulk electronic mail advertisements on behalf of those users which the person knows, or should have known, were transmitted in violation of this section.
    2. Electronic mail advertisements which are accessed by the recipient from an electronic bulletin board.
    3. A person who provides users with access at no charge to electronic mail, including receiving and transmitting bulk electronic mail advertisements, and, as a condition of providing such access, requires such users to receive unsolicited advertisements. (d) The transmission of bulk electronic mail advertisements from an organization or similar entity to the members of such organization.
  6. An interactive computer service is not liable under this section for an action voluntarily taken in good faith to block or prevent the receipt or transmission through its service of any bulk electronic mail advertisement which is reasonably believed to be in violation of this section.
History.

I.C.,§ 48-603E, as added by 2000, ch. 423, § 1, p. 1373.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2000, ch. 423, provided that the act shall be in full force and effect on and after July 1, 2000.

RESEARCH REFERENCES

ALR.

Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution. 98 A.L.R.5th 167.

Validity, construction, and application of federal and state statutes regulating unsolicited e-mail or “spam”. 10 A.L.R.6th 1.

§ 48-603F. Mortgage loan modification fees.

  1. For purposes of this section, unless the context otherwise requires:
    1. “Fee” means any item of value including, but not limited to, goods or services.
    2. “Loan modification activities” is defined in section 26-31-201(3), Idaho Code.
  2. Charging or collecting any fee in connection with mortgage loan modification activities shall constitute a violation of the Idaho consumer protection act, unless the person charging or collecting such fees is licensed pursuant to chapter 20, title 54, Idaho Code, or licensed, exempt or excluded from licensing pursuant to part 2 or 3, chapter 31, title 26, Idaho Code.
History.

I.C.,§ 48-603F, as added by 2011, ch. 323, § 3, p. 939.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 2011, ch. 323 provided: “This act shall be in full force and effect on and after September 1, 2011.”

§ 48-604. Intent of legislature — Attorney general to make rules and regulations.

  1. It is the intent of the legislature that in construing this act due consideration and great weight shall be given to the interpretation of the federal trade commission and the federal courts relating to section 5(a)(1) of the federal trade commission act (15 U.S.C. 45(a)(1)), as from time to time amended; and
  2. The attorney general may make rules and regulations interpreting the provisions of this act. Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of section 5(a)(1) of the federal trade commission act (15 U.S.C. 45(a)(1)), as from time to time amended. Rules and regulations shall be promulgated as provided in chapter 52, title 67, Idaho Code.
History.

1971, ch. 181, § 5, p. 847; am. 1973, ch. 285, § 5, p. 601.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 48-604 was repealed. See Prior Laws,§ 48-601.

Compiler’s Notes.

The term “this act” in subsections (1) and (2) refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

The references enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Federal Law.

Federal case law as it has developed under § 5(2)(1) of the Federal Trade Commission Act, although not binding, is persuasive in application of this chapter. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Cited

Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979); Haskin v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982); Myers v. A.O. Smith Harvestore Prods., Inc., 114 Idaho 432, 757 P.2d 695 (Ct. App. 1988).

§ 48-605. Exceptions to chapter.

Nothing in this act shall apply to:

  1. Actions or transactions permitted under laws administered by the state public utility commission or other regulatory body or officer acting under statutory authority of this state or the United States.
  2. Acts done by publishers, broadcasters, printers, retailers, or their employees, in the publication or dissemination of an advertisement in good faith on the basis of information or material supplied by others and without knowledge or reason to know of the misleading or deceptive character of such advertisement or the information or material furnished.
  3. Persons subject to chapter 13, title 41, Idaho Code (sections 41-1301 through 41-1327), defining, and providing for the determination by the director of the department of insurance of unfair methods of competition or unfair or deceptive acts or practices in the business of insurance.
History.

1971, ch. 181, § 6, p. 847.

STATUTORY NOTES

Cross References.

Director of department of insurance,§ 41-202.

Public utilities commission,§ 61-201.

Prior Laws.

Former§ 48-605 was repealed. See Prior Laws,§ 48-601.

Compiler’s Notes.

The name of the commissioner of insurance has been changed to the director of the department of insurance on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 11, § 3 (§ 41-203).

The term “this act” in the introductory paragraph refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

The reference enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Insurance.

Insurance company’s failure to give insured a copy of a promissory note signed by insured did not violate this chapter; the debt underlying the promissory note arose from the purchase of insurance through an insurance agency which is a sale explicitly excluded from the act’s provisions. Irwin Rogers Ins. Agency, Inc. v. Murphy, 122 Idaho 270, 833 P.2d 128 (Ct. App. 1992).

§ 48-606. Proceedings by attorney general.

  1. Whenever the attorney general has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by this chapter to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the state against such person:
    1. To obtain a declaratory judgment that a method, act or practice violates the provisions of this chapter;
    2. To enjoin any method, act or practice that violates the provisions of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction, upon the giving of appropriate notice to that person as provided by the Idaho rules of civil procedure;
    3. To recover on behalf of consumers actual damages or restitution of money, property or other things received from such consumers in connection with a violation of the provisions of this chapter;
    4. To order specific performance by the violator;
    5. To recover from the alleged violator civil penalties of up to five thousand dollars ($5,000) per violation for violation of the provisions of this chapter; and
    6. To recover from the alleged violator reasonable expenses, investigative costs and attorney’s fees incurred by the attorney general.
  2. The action may be brought in the district court of the county in which such person resides or has his principal place of business, or with consent of the parties, may be brought in the district court of Ada county. If the person does not reside in or have a principal place of business in this state, the action may be brought in any district court in this state. The said courts are authorized to issue temporary restraining orders or preliminary or permanent injunctions to restrain and prevent violations of the provisions of this chapter, and such injunctions shall be issued without bond.
  3. Unless the attorney general finds in writing that the purposes of this chapter will be substantially and materially impaired by delay in instituting legal proceedings, he shall, before initiating any legal proceedings as provided in this section, give notice in writing that such proceedings are contemplated to the person against whom proceedings are contemplated and allow such person a reasonable opportunity to appear before the attorney general and execute an assurance of voluntary compliance or a consent judgment as in this chapter provided.
  4. In lieu of instigating or continuing an action or proceeding, the attorney general may accept a consent judgment with respect to any act or practice alleged to be a violation of the provisions of this chapter, and it may include a stipulation for the payment by such person of reasonable expenses, investigative costs and attorney’s fees incurred by the attorney general. The consent judgment may also include a stipulation for civil penalties to be paid, not in excess of five thousand dollars ($5,000) per alleged violation; a stipulation to pay to consumers actual damages or to allow for restitution of money, property or other things received from such consumers in connection with a violation of the provisions of this chapter; and/or a stipulation for specific performance. Before any consent judgment entered into pursuant to this section shall be effective, it must be approved by the district court and an entry made thereof in the manner required for making an entry of judgment. Once such approval is received, any breach of the conditions of such consent judgment shall be treated as a violation of a court order, and shall be subject to all penalties provided by law therefor, including the penalties set forth in section 48-615, Idaho Code.
  5. All penalties, costs and fees recovered by the attorney general shall be remitted to the consumer protection fund which is hereby created in the state treasury. Moneys in the fund may be expended pursuant to legislative appropriation and shall be used for the furtherance of the attorney general’s duties and activities under this chapter. At the beginning of each fiscal year, those moneys in the consumer protection fund which exceed the current year’s appropriation plus any residual encumbrances made against prior years’ appropriations by fifty percent (50%) or more shall be transferred to the general fund.
  6. Any moneys collected by the attorney general as trustee for distributions to injured consumers shall be deposited in the state treasury until such time as payment is made to an individual or individuals for purposes of restitution or pursuant to a court approved cy pres distribution.
History.

1971, ch. 181, § 7, p. 847; am. 1973, ch. 285, § 6, p. 601; am. 1990, ch. 273, § 4, p. 766; am. 1991, ch. 243, § 1, p. 592; am. 1993, ch. 102, § 3, p. 256; am. 2001, ch. 61, § 1, p. 112.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

General fund,§ 67-1205.

Prior Laws.

Former§ 48-606 was repealed. See Prior Laws,§ 48-601.

CASE NOTES

Notice of Proceedings.

Where the trial court testimony indicated that the manufacturer of water conditioning units was kept informed about the complaints raised by the attorney general’s office and the proceedings leading up to the execution of the assurance of voluntary compliance by the distributor of those units, and that the manufacturer approved changes made in the sales presentation script pursuant to the assurance, the attorney general’s written notice to the distributor of the water conditioning units was adequate notice, under subsection (2) of this section, to the manufacturer that legal proceedings under this chapter were contemplated as a result of the sales program in which the manufacturer was involved. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

§ 48-607. Additional relief by court authorized.

In any action brought by the attorney general, wherein the state prevails, the court shall, in addition to the relief granted pursuant to section 48-606, Idaho Code, award reasonable costs, investigative expenses and attorney’s fees to the attorney general. These costs and fees shall be remitted to the consumer protection account [consumer protection fund] created in section 48-606, Idaho Code, and shall be used for the furtherance of the attorney general’s duties and activities under this chapter. In addition, the court may:

  1. Make such orders or judgments as may be necessary to prevent the use or employment by a person of any method, act or practice declared to be a violation of the provisions of this chapter;
  2. Make such orders or judgments as may be necessary to compensate any consumers for actual damages sustained or to provide for restitution to any consumers of money, property or other things received from such consumers in connection with a violation of the provisions of this chapter;
  3. Make such orders or judgments as may be necessary to carry out a transaction in accordance with consumers’ reasonable expectations;
  4. Appoint a master, receiver or escrow agent to oversee assets or order sequestration of assets whenever it shall appear that the defendant threatens or is about to remove, conceal or dispose of property to the damage of persons to whom restoration would be made under this subsection and assess the expenses of a master, receiver or escrow agent against the defendant;
  5. Revoke any license or certificate authorizing that person to engage in business in this state;
  6. Enjoin any person from engaging in business in this state; and/or
  7. Grant other appropriate relief.
History.

1971, ch. 181, § 8, p. 847; am. 1973, ch. 285, § 7, p. 601; am. 1990, ch. 273, § 5, p. 766.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The bracketed insertion in the second sentence in the introductory paragraph was added by the compiler to correct the name of the referenced fund. See§ 48-606.

CASE NOTES

Burden of proof. Discretion of court.

Burden of Proof.

The state need not prove in a consumer protection action that consumers in fact relied upon deceptions or misrepresentations made by the defendant and that the defendant’s acts were a proximate cause of the defendant’s acquisition of moneys from consumers in order for the state to obtain restitutionary relief for Idaho consumers. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Discretion of Court.

Restitution is not an automatic or mandatory remedy for violations of this chapter; the district court’s discretion to award restitutionary relief should be exercised with a view toward the purposes of the chapter. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Interested Consumers.

An order granting consumers restitutionary relief or permitting them to rescind their purchase agreements with a water conditioner distributor may be applied to all consumers affected by the same trade practices found by the court to be unfair or deceptive under this chapter, since equitable relief need not be limited to the consumer witnesses who testified at trial. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Restitution.

Restitutionary relief is appropriate in an action brought by the attorney general under this chapter, where such relief would be required to reestablish the status quo ante which existed prior to the defendant’s deceptive or unfair acts. State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 615 P.2d 116 (1980).

Cited

Yellow Pine Water User’s Ass’n v. Imel, 105 Idaho 349, 670 P.2d 54 (1983).

§ 48-608. Loss from purchase or lease — Actual and punitive damages.

  1. Any person who purchases or leases goods or services and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by this chapter, may treat any agreement incident thereto as voidable or, in the alternative, may bring an action to recover actual damages or one thousand dollars ($1,000), whichever is the greater; provided, however, that in the case of a class action, the class may bring an action for actual damages or a total for the class that may not exceed one thousand dollars ($1,000), whichever is the greater. Any such person or class may also seek restitution, an order enjoining the use or employment of methods, acts or practices declared unlawful under this chapter and any other appropriate relief which the court in its discretion may deem just and necessary. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper in cases of repeated or flagrant violations.
  2. An elderly person or a disabled person who brings an action under subsection (1) of this section shall, in addition to the remedies available under subsection (1) of this section, recover from the offending party an enhanced penalty of fifteen thousand dollars ($15,000) or treble the actual damages, whichever is greater.
    1. In order to recover the enhanced penalty, the court must find that the offending party knew or should have known that his conduct was perpetrated against an elderly or disabled person and that his conduct caused one (1) of the following:
      1. Loss or encumbrance of the elderly or disabled person’s primary residence;
      2. Loss of more than twenty-five percent (25%) of the elderly or disabled person’s principal monthly income;
      3. Loss of more than twenty-five percent (25%) of the funds belonging to the elderly or disabled person set aside by the elderly or disabled person for retirement or for personal or family care or maintenance;
      4. Loss of more than twenty-five percent (25%) of the monthly payments that the elderly or disabled person receives under a pension or retirement plan; or
      5. Loss of assets essential to the health or welfare of the elderly or disabled person.
    2. If the court orders restitution under subsection (1) of this section for a pecuniary or monetary loss suffered by an elderly or disabled person, the court shall require that the restitution be paid by the offending party before he pays the enhanced penalty imposed by this subsection.
    3. In this subsection:
      1. “Disabled person” means a person who has an impairment of a physical, mental or emotional nature that substantially limits at least one (1) major life activity.
      2. “Elderly person” means a person who is at least sixty-two (62) years of age.
      3. “Major life activity” means self-care, walking, seeing, hearing, speaking, breathing, learning, performing manual tasks or being able to be gainfully employed. (3) An action brought under subsection (1) of this section may be brought in the county in which the person against whom it is brought resides, has his principal place of business, or is doing business, or in the county where the transaction or any substantial portion thereof occurred.

(4) Upon commencement of any action brought under this section, the clerk of the court shall, for informational purposes only, mail a copy of the complaint or other initial pleading to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.

(5) Costs shall be allowed to the prevailing party unless the court otherwise directs. In any action brought by a person under this section, the court shall award, in addition to the relief provided in this section, reasonable attorney’s fees to the plaintiff if he prevails. The court in its discretion may award attorney’s fees to a prevailing defendant if it finds that the plaintiff’s action is spurious or brought for harassment purposes only.

(6) Any permanent injunction, judgment or order of the court made under section 48-606(1) through (3) or section 48-607, Idaho Code, shall be admissible as evidence in an action brought under this section that the respondent used or employed a method, act or practice declared unlawful by this chapter.

History.

1971, ch. 181, § 9, p. 847; am. 1973, ch. 285, § 8, p. 601; am. 1990, ch. 273, § 6, p. 766; am. 2008, ch. 257, § 1, p. 749.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Amendments.

The 2008 amendment, by ch. 257, in subsection (1), substituted “chapter” for “act”; and added subsection (2) and redesignated the remaining subsections accordingly.

CASE NOTES

Application.

In the 1990 session laws the legislature modified subsection (1) of this section in part by deleting the reference to the rules of civil procedure. No reason is indicated for the change. The supreme court of Idaho concluded that the rules still apply and that the modification was not intended to be removed from the rules actions pursued under subsection (1) of this section. Shurtliff v. Northwest Pools, Inc., 120 Idaho 263, 815 P.2d 461 (Ct. App. 1991).

Landowners did not treat their agreement with a well driller as void; they sought their alternative remedy for actual damages, which the court granted, and the district court did not treat the remedies as cumulative, but simply pointed out that the landowners would have been entitled to consider the agreement void had they so chosen. Duspiva v. Fillmore, 154 Idaho 27, 293 P.3d 651 (2013).

Attorney’s Fees.

In an action brought by a musician to recover royalties on music, attorney’s fees recoverable where a default judgment was entered were limited to the amount stated in a complaint. Holladay v. Lindsay, 143 Idaho 767, 152 P.3d 638 (Ct. App. 2006).

Attorney fees were properly awarded by the trial court under against a creditor who brought a frivolous suit against his debtors’ attorneys, and fees on appeal also were warranted because the appeal was brought spuriously and without foundation for the purpose of harassment. Taylor v. McNichols, 149 Idaho 826, 243 P.3d 642 (2010).

Basis for Cause of Actions.

The language of subsection (1) of this section does not require that a purchase or lease be “completed” in order for an action to be brought; however, since no authority exists for applying this chapter to a merely contemplated transaction, a claim under this chapter involving the sale of property must be based upon a sales contract. Haskin v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982).

Choice of Remedies.

In an action to recover earnest money, where property seller alleged that the president of a real estate company violated this chapter and, thus, terminated his employment contract with the real estate company, seller had chosen his remedy under subsection (1) of this section and can not later sue to recover actual damages. Knipe Land Co. v. Robertson, 151 Idaho 449, 259 P.3d 595 (2011).

Damages.

Lessees of a gas station could not be awarded either actual or statutory damages for station owner’s supplying lessees with a different brand of gasoline without notifying them of the difference, where lessees failed to prove any ascertainable losses arising from owner’s deceptive trade practices. Jackson v. Wood, 859 P.2d 378 (Ct. App. 1993).

Discretion of Court.

Trial court erred in dismissing an owner’s complaint for failure to prove liability and the owner was entitled to entitled to compensatory damages and attorneys’ fees, because the district court found that there was a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages and he was not required to prove liability where his allegations for breach of contract and violation of the Idaho consumer protection act were admitted by an agent and his company as being true. Pierce v. McMullen, 156 Idaho 465, 328 P.3d 445 (2014). Discretion of Court.

The determination of who is a prevailing party, for the purpose of receiving an award of attorney fees, is committed to the sound discretion of the trial court; that determination will not be disturbed unless an abuse of discretion has occurred. Where the trial court has exercised its discretion after a careful consideration of the relevant factual circumstances and principles of law, and without arbitrary disregard for those facts and principles of justice, that exercise of discretion has not been abused and will not be disturbed. Decker v. Homeguard Sys., 105 Idaho 158, 666 P.2d 1169 (Ct. App. 1983).

Goods.

Although “goods” defined under the act include intangible property which could encompass money, it would take a strained construction of the act to be able to hold that the signing of a personal guarantee for a loan to a corporation was “purchase of goods.” Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979).

Payment of Legal Obligation.

When a consumer merely pays an existing legal obligation, he does not suffer damages although there may be involved deceptive acts or practices. Yellow Pine Water User’s Ass’n v. Imel, 105 Idaho 349, 670 P.2d 54 (1983).

Where consumers had paid no amount exceeding their admitted legal obligation to water authority, they had not suffered “ascertainable loss” such as would entitle them to recovery damages under this section. Yellow Pine Water User’s Ass’n v. Imel, 105 Idaho 349, 670 P.2d 54 (1983).

Prevailing Party.

In action by homeowners against seller of hydronic heating systems, trial court did not abuse its discretion in determining that homeowners were the prevailing parties despite the fact that majority of homeowners’ claims were dismissed, that jury awarded damages amounting to only 3% of the recovery sought, and that seller prevailed on counterclaim against builder. Decker v. Homeguard Sys., 105 Idaho 158, 666 P.2d 1169 (Ct. App. 1983).

The amount to be awarded as attorney’s fees was properly identified as a matter of discretion; however, the trial court improperly exercised its discretion in calculating the amount of fees on the basis of prevailing “theories” and the concomitant fractionating of the contingent fee. Nalen v. Jenkins, 113 Idaho 79, 741 P.2d 366 (Ct. App. 1987).

The intent of this section is to compensate a prevailing plaintiff for the costs of bringing an action under this chapter, and to further that purpose, attorney fees should be allowed on appeal for the prevailing plaintiff. Nalen v. Jenkins, 113 Idaho 79, 741 P.2d 366 (Ct. App. 1987).

The fact that an award is made to a party does not necessarily require the amount to be limited to the party-attorney agreement; the statute provides for the award of an objectively “reasonable” fee, and such a fee may be higher or lower than what the party must pay to the attorney under their agreement. Nalen v. Jenkins, 114 Idaho 973, 763 P.2d 1081 (Ct. App. 1988).

The trial court did not err in determining that the plaintiffs had to suffer “ascertainable damages” under subsection (1) of this section before they could be considered prevailing parties and awarded attorney fees. Shurtliff v. Northwest Pools, Inc., 120 Idaho 263, 815 P.2d 461 (Ct. App. 1991). In denying attorney fees to both parties, the trial court did not venture outside the boundaries of its discretion, nor did it act inconsistently with the legal standards applicable to the award of attorney fees; the trial court’s decision to require each party to bear its own fees appeared to have been reached through the exercise of reason. Israel v. Leachman, 139 Idaho 24, 72 P.3d 864 (2003).

In a property sale dispute in which one ruling in favor of the sellers was overturned on appeal, while several other rulings in favor of the sellers were affirmed, the buyer was not entitled to attorney fees on appeal because he was not the prevailing party. White v. Mock, 140 Idaho 882, 104 P.3d 356 (2004).

Dealership was not entitled to attorney’s fees where it did not prevail on appeal. Dan Wiebold Ford, Inc. v. Universal Computer Consulting Holding, Inc., 142 Idaho 235, 127 P.3d 138 (2005).

Repeated or Flagrant Violations.

In a suit by distributor against manufacturer, testimony of four ex-distributors from the same time frame and geographical area was relevant to show repeated or flagrant violations of this chapter. Mac Tools, Inc. v. Griffin, 126 Idaho 193, 879 P.2d 1126 (1994).

Standard of Proof.

This section is remedial in nature; when a party brings an action for violation of this chapter, that party does not have to show an extreme deviation from reasonable standards of conduct in order to be awarded punitive damages, but rather must show repeated or flagrant violations of this chapter. This section contains its own remedies; the only standard the jury must follow is that prescribed in the chapter itself, i.e., repeated or flagrant violations. Mac Tools, Inc. v. Griffin, 126 Idaho 193, 879 P.2d 1126 (1994).

Standing.

Because a creditor who sued his debtors’ attorneys did not allege that he entered into a contractual relationship with the attorneys, he lacked standing under this section; moreover, he failed to identify specific prohibited actions deemed to be unfair or deceptive, as set forth in§§ 48-603 to 48-603E. Taylor v. McNichols, 149 Idaho 826, 243 P.3d 642 (2010).

Cited

Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981); Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001); Posey v. Ford Motor Credit Co., 141 Idaho 477, 111 P.3d 162 (Ct. App. 2005).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

§ 48-609. Contract for sale or lease — Evidence of indebtedness

Assignment. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised S.L. 1971, ch. 181, § 10, p. 847, was repealed by S.L. 1980, ch. 112, § 1.

§ 48-610. Voluntary compliance — District court approval.

  1. In the administration of this chapter, the attorney general may accept an assurance of voluntary compliance with respect to any method, act or practice deemed to be violative of the provisions of this chapter from any person who has engaged or was about to engage in such method, act or practice. Any such assurance shall be in writing and be filed with and subject to the approval of the district court of the county in which the alleged violator resides or has his principal place of business or of the district court of Ada County and shall be deemed an order of the court enforceable by contempt proceedings.
  2. Such assurance of voluntary compliance shall not be considered an admission of violation for any purpose.
  3. The assurance of voluntary compliance shall provide for the discontinuance by the person entering into the same of any method, act or practice alleged to be a violation of this chapter, and it may include a stipulation for the payment by such person of reasonable expenses, investigative costs and attorney’s fees incurred by the attorney general. The recovered expenses, costs and fees shall be remitted to the consumer protection account [consumer protection fund] created in section 48-606, Idaho Code, and shall be used for the furtherance of the attorney general’s duties and activities under this chapter. The assurance may also include: a stipulation for payment to consumers of actual damages or for restitution of money, property, or other things received from consumers in connection with a violation of the provisions of this chapter; and a stipulation for specific performance.
  4. A violation of such assurance of voluntary compliance shall prima facie establish that the person subject thereto knows, or in the exercise of due care should know, that he has in the past violated or is violating the provisions of this chapter.
  5. Matters thus closed may at any time be reopened by the attorney general for further proceedings in the public interest, pursuant to section 48-606, Idaho Code.
History.

1971, ch. 181, § 11, p. 847; am. 1973, ch. 285, § 9, p. 601; am. 1990, ch. 273, § 7, p. 766.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Contempt proceedings,§ 7-601 et seq.

Compiler’s Notes.

The bracketed insertion in the second sentence in subsection (3) was added by the compiler to correct the name of the referenced fund. See§ 48-606.

CASE NOTES

Arbitration.

Supreme court of Idaho had jurisdiction to hear an appeal from an order dismissing a case alleging violations of this chapter on the grounds that the parties had entered into a contract that included a provision requiring them to arbitrate disputes between them; although the order dismissed the case, it had the effect of compelling arbitration. Dan Wiebold Ford, Inc. v. Universal Computer Consulting Holding, Inc., 142 Idaho 235, 127 P.3d 138 (2005).

§ 48-611. Investigative demand by attorney general — Report required.

  1. When the attorney general has reason to believe that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by this act, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation, an investigative demand requiring such person to furnish a report in writing setting forth the relevant facts and circumstances of which he has knowledge, or to appear and testify 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, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation. The return date in said investigative demand shall be not less than twenty (20) days after serving of the demand.
  2. At any time before the return date specified in an investigative demand, or within twenty (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, may be filed in the district court of the county where the person served with the demand resides or has his principal place of business or in the district court in Ada County.
History.

1971, ch. 181, § 12, p. 847; am. 1993, ch. 102, § 4, p. 256.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The term “this act” near the beginning of subsection (1) refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

CASE NOTES

Extent of Attorney General’s Power.

An investigative demand does not constitute an unqualified power of the attorney general to require the presentation of the information sought. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Signature of Deputy Acceptable.

The attorney general is not required personally to sign an investigative demand issued by his office pursuant to this section, as it may be signed by a deputy attorney general. Western Acceptance Corp. v. Jones, 117 Idaho 399, 788 P.2d 214 (1990).

Waiver of Right to Object.

Failure to respond or file a petition pursuant to the procedures and within the time period set forth in this section constitutes a waiver of the right to object to the investigative demand. State ex rel. Lance v. Hobby Horse Ranch Tractor & Equip. Co., 129 Idaho 565, 929 P.2d 741 (1996).

§ 48-612. Additional powers of attorney general.

To accomplish the objectives and to carry out the duties prescribed by this chapter, the attorney general, in addition to other powers conferred upon him by this chapter, may issue subpoenas to any person and conduct hearings in aid of any investigation or inquiry; provided that information obtained pursuant to the powers conferred in this chapter shall be subject to disclosure according to chapter 1, title 74, Idaho Code.

History.

1971, ch. 181, § 13, p. 847; am. 1990, ch. 213, § 67, p. 535; am. 1990, ch. 273, § 8, p. 766; am. 1991, ch. 243, § 2; am. 2015, ch. 141, § 124, p. 379.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” near the end of the section.

Compiler’s Notes.

This section was also amended by S.L. 1990, ch. 213, § 67 to become effective July 1, 1993. However, § 3 of S.L. 1991, ch. 243 repealed § 67, S.L. 1990, ch. 213, effective July 1, 1993.

Effective Dates.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of the act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

§ 48-613. Service of notice.

Service of any notice, demand or subpoena under this act shall be made personally within this state, but if such cannot be obtained, substituted service therefor may be made in the following manner:

  1. Personal service thereof without this state; or
  2. The mailing thereof by registered or certified mail to the last known place of business, residence or abode within or without this state or such person for whom the same is intended; or
  3. As to any person other than a natural person, in the manner provided in the Idaho rules of civil procedure as if a complaint which institutes a civil proceeding had been filed.
History.

1971, ch. 181, § 14, p. 847.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

CASE NOTES

Applicability.

This section did not authorize service of a summons and complaint by registered or certified mail in a contract action, as the section only applies to the service of a notice, demand or subpoena under the Idaho consumer protection act,§ 48-601 et seq. Telford v. Smith County, 155 Idaho 497, 314 P.3d 179 (2013).

§ 48-614. Failure to obey attorney general — Application to district court.

  1. If any person fails or refuses to file any statement or report, or obey any subpoena or investigative demand issued by the attorney general, the attorney general may, after notice, apply to a district court of the county in which the person resides or has a principal place of business, or if the person does not reside in or have a principal place of business in this state, the attorney general may apply to any district court in this state and, after hearing thereon, request an order:
    1. Ordering such person to file such statement or report, or to comply with the subpoena or investigative demand issued by the attorney general;
    2. Granting injunctive relief to restrain the person from engaging in the advertising or sale of any merchandise or the conduct of any trade or commerce that is involved in the alleged or suspected violation; and
    3. Granting such other relief as may be required, until the person files the statement or report, or obeys the subpoena or investigative demand.
  2. The court shall award the prevailing party reasonable expenses and attorney fees incurred in obtaining an order under the provisions of this section if the court finds that the attorney general’s request for an order under this section or a person’s resistance to filing any statement or report, or obeying any subpoena or investigative demand, was without a reasonable basis in fact or law.
  3. Any disobedience of any final order entered under the provisions of this section by any court shall be punished as a contempt thereof. Contempt penalties sued for and recovered by the attorney general shall be remitted to the consumer protection account [consumer protection fund] created in section 48-606, Idaho Code, and shall be used for the furtherance of the attorney general’s duties and activities under the provisions of this chapter.
History.

1971, ch. 181, § 15, p. 847; am. 1990, ch. 273, § 9, p. 766; am. 1991, ch. 243, § 4, p. 592; am. 1993, ch. 102, § 5, p. 256.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Contempt proceedings,§ 7-601 et seq.

Compiler’s Notes.

The bracketed insertion in subsection (3) was added by the compiler to correct the name of the referenced fund. See§ 48-606.

Effective Dates.

Section 5 of S.L. 1991, ch. 243 read: “An emergency existing therefor, which emergency is hereby declared to exist, Section 2 of this act shall be in full force and effect on and after its passage and approval. Section 3 of this act shall be in full force and effect on and after July 1, 1993. Sections 1 and 4 of this act shall be in full force and effect on and after July 1, 1991.” Approved April 4, 1991.

CASE NOTES

Failure to Object or Respond.

Because this chapter sets forth a clear procedure and time limit for objecting to an investigative demand, the defendant’s failure to object or respond to the investigative demand within the statutory time period was without a reasonable basis in fact or law. Since the state clearly prevailed on appeal, the state was awarded costs and attorney fees. State ex rel. Lance v. Hobby Horse Ranch Tractor & Equip. Co., 129 Idaho 565, 929 P.2d 741 (1996).

§ 48-615. Violation of injunction — Civil penalty.

Any person who violates the terms of an injunction issued or consent order entered into pursuant to section 48-606, Idaho Code, or an order entered into pursuant to section 48-614, Idaho Code, shall forfeit and pay to the state a civil penalty of not more than ten thousand dollars ($10,000) per violation, the amount of the penalty to be determined by the district court issuing the injunction. For the purposes of this section, the district court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the attorney general acting in the name of the state may petition for recovery of civil penalties. Said civil penalties sued for and recovered by the attorney general shall be remitted to the consumer protection account [consumer protection fund] created in section 48-606, Idaho Code, and shall be used for the furtherance of the attorney general’s duties and activities under the provisions of this chapter.

History.

1971, ch. 181, § 16, p. 847; am. 1990, ch. 273, § 10, p. 766; am. 1993, ch. 102, § 6, p. 256.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The bracketed insertion in the last sentence was added by the compiler to correct the name of the referenced fund. See§ 48-606.

§ 48-616. Forfeiture of corporate franchise.

Upon petition by the attorney general, the district court of the county in which the principal place of business of the corporation is located may, in its discretion, order the dissolution or suspension or forfeiture of franchise of any corporation which violates the terms of any injunction issued under section 48-606, Idaho Code.

History.

1971, ch. 181, § 17, p. 847; am. 1993, ch. 102, § 7, p. 256.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-617. Local law enforcement officials — Duties.

It shall be the duty of local law enforcement officials to provide the attorney general such assistance as the attorney general may request in the investigation, commencement and prosecution of actions pursuant to this chapter.

History.

1971, ch. 181, § 18, p. 847; am. 1990, ch. 273, § 11, p. 766.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-618. Construction of chapter.

This act is to be construed uniformly with federal law and regulations. In any action instituted under this act it shall be an absolute defense to show the challenged practices are subject to and comply with statutes administrated by the federal trade commission, or any duties, regulations or decisions interpreting such statutes.

History.

1971, ch. 181, § 18, p. 847.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the first and second sentences refer to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

For further information on the federal trade commission, see https://www.ftc.gov .

§ 48-619. Limitation of action.

No private action may be brought under this act more than two (2) years after the cause of action accrues.

History.

1971, ch. 181, § 20, p. 847; am. 1997, ch. 127, § 1, p. 380.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the middle of this section refers to S.L. 1971, Chapter 181, which is compiled as§§ 48-601 to 48-603, 48-604 to 48-608 and 48-610 to 48-619. The reference probably should be to “this chapter,” being chapter 6, title 48, Idaho Code.

Section 21 of S.L. 1971, ch. 181 provided: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 22 of S.L. 1971, ch. 181 declared an emergency. Approved March 24, 1971.

Section 2 of S.L. 1997, ch. 127 declared an emergency. Approved March 15, 1997.

CASE NOTES

Accrual.

To determine whether debtors have a timely Disclosure Statement ICPA claim, the court must first determine when their alleged cause of action “accrued.” In Idaho, a cause of action accrues when one party may sue another. Before an “accrued” claim arises under the ICPA, a person must purchase or lease goods or services, and thereby suffer an ascertainable loss. In addition, the ascertainable loss must be the result of a practice declared unlawful by the ICPA. Beach v. Bank of Am. (In re Beach), 447 B.R. 313 (Bankr. D. Idaho 2011).

Action Time-barred.

Where development company’s improvement of land between property owners’ lot and a paved street in 2007 and 2008 should have put property owners on notice that the development company would not honor its advertised promise to provide property owners with direct access to the street, a suit brought in 2015 was barred by the statute of limitations. Swafford v. Huntsman Springs, Inc., 163 Idaho 209, 409 P.3d 789 (2017).

Chapter 7 SHOPLIFTING

Sec.

§ 48-701. Liability for removing or concealing merchandise — Retail theft.

Any person who knowingly removes merchandise from a merchant’s premises without paying therefor, or knowingly conceals merchandise to avoid paying therefor, or knowingly commits retail theft, shall be civilly liable to the merchant for the retail value of the merchandise, plus damages of not less than one hundred dollars ($100) nor more than two hundred fifty dollars ($250), costs of suit and reasonable attorneys’ fees.

History.

I.C.,§ 48-701, as added by 1974, ch. 245, § 1, p. 1620; am. 1980, ch. 243, § 1, p. 562.

STATUTORY NOTES

Cross References.

Detention of shoplifting suspects, defense to civil and criminal liability,§ 18-4626.

RESEARCH REFERENCES

ALR.

Changing the price tags by patron in self-service store as criminal offense. 60 A.L.R.3d 1293.

Validity, construction, and effect of statutes establishing shoplifting or its equivalent as separate criminal offense. 64 A.L.R.4th 1088.

§ 48-702. Liability for acts of minors.

The parent having legal custody, of a minor who knowingly removes merchandise from a merchant’s premises without paying therefor, or knowingly conceals merchandise to avoid paying therefor, or knowingly commits retail theft, shall be civilly liable to the merchant for the retail value of the merchandise, plus damages of not less than one hundred dollars ($100) nor more than two hundred fifty dollars ($250), costs of suit and reasonable attorney’s fees. Recovery under this section is not limited by any other provision of law which limits the liability of a parent for the tortious conduct of a minor. The liability of parents and of the minor under this chapter is joint and several.

A parent not having legal custody of a minor shall not be liable for the conduct of the minor proscribed by this act.

History.

I.C.,§ 48-702, as added by 1974, ch. 245, § 1, p. 1620; am. 1980, ch. 243, § 2, p. 562; am. 2012, ch. 257, § 12, p. 709.

STATUTORY NOTES

Amendments.

The 2012 amendment, by ch. 257, deleted “or legal guardian” or “or guardian” following “parent” or “parents” in four places.

Compiler’s Notes.

The term “this act” at the end of the section refers to S.L. 1974, Chapter 245, which is codified as§§ 48-701 to 48-705.

§ 48-703. Definitions.

As used in this chapter:

  1. “Merchandise” means any personal property displayed, held or offered for sale by a merchant.
  2. “Merchant” means an owner or operator, and the agent, consignee, employee, lessee, or officer of an owner or operator, of any merchant’s premises.
  3. “Premises” means any establishment or part thereof wherein merchandise is displayed, held or offered for sale.
  4. “Minor” means any person less than eighteen (18) years of age.
  5. “Retail theft” means the alteration, transfer, or removal of any label, price tag, marking, indicia of value or any other markings which aid in the determination of value of any merchandise displayed, held, stored, or offered for sale, in a retail mercantile establishment, for the purpose of attempting to purchase such merchandise either personally or in consort with another, at less than the retail value with the intention of depriving the merchant of the value of such merchandise.
History.

I.C.,§ 48-703, as added by 1974, ch. 245, § 1, p. 1620; am. 1980, ch. 243, § 3, p. 562.

§ 48-704. Authorized actions of merchants.

  1. Any merchant may request a person on his premises to place or keep in full view any merchandise such person may have removed, or which the merchant has reason to believe he may have removed, from its place of display or elsewhere, whether for examination, purchase or for any other purpose. No merchant shall be criminally or civilly liable on account of having made such a request.
  2. Any merchant who has reason to believe that merchandise has been taken by a person in violation of this act and that he can recover such merchandise by taking such a person into custody and detaining him may, for the purpose of attempting to effect such recovery or for the purpose of informing a peace officer of the circumstances of such detention, take the person into custody and detain him, in a reasonable manner and for a reasonable length of time.
History.

I.C.,§ 48-704, as added by 1974, ch. 245, § 1, p. 1620.

STATUTORY NOTES

Cross References.

Detention of shoplifting suspects, defense to civil and criminal liability,§ 18-4626.

Compiler’s Notes.

The term “this act” near the beginning of subsection (2) refers to S.L. 1974, Chapter 245, which is codified as§§ 48-701 to 48-705.

RESEARCH REFERENCES

ALR.

§ 48-705. Notice of right of detention.

No merchant shall be entitled to immunity from liability provided for in this act unless there is displayed in a conspicuous place on his premises a notice not less than thirteen (13) inches wide and twenty-one (21) inches long, clearly legible and in substantially the following form:

ANY MERCHANT OR HIS AGENT WHO HAS REASON TO BELIEVE THAT MERCHANDISE HAS BEEN REMOVED OR CONCEALED BY A PERSON IN VIOLATION OF THIS ACT MAY DETAIN SUCH PERSON FOR THE PURPOSE OF RECOVERING THE PROPERTY OR NOTIFYING A PEACE OFFICER. A PERSON OR THE PARENTS OR LEGAL GUARDIAN OF A MINOR WHO KNOWINGLY REMOVES MERCHANDISE WITHOUT PAYING THEREFOR, OR CONCEALS MERCHANDISE TO AVOID PAYING THEREFOR, IS CIVILLY LIABLE FOR ITS VALUE, AND ADDITIONAL DAMAGES.

History.

I.C.,§ 48-705, as added by 1974, ch. 245, § 1, p. 1620.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1974, Chapter 245, which is codified as§§ 48-701 to 48-705.

Chapter 8 IDAHO TRADE SECRETS ACT

Sec.

§ 48-801. Definitions.

As used in this chapter unless the context requires otherwise:

  1. “Improper means” include theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
  2. “Misappropriation” means:
    1. 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; or
    2. Disclosure or use of a trade secret of another without express or implied consent by a person who:
      1. Used improper means to acquire knowledge of the trade secret; or
      2. At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
        1. Derived from or through a person who had utilized improper means to acquire it;
        2. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
        3. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
  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. “Computer program” means information which is capable of causing a computer to perform logical operation(s) and:
    1. Is contained on any media or in any format;
    2. Is capable of being input, directly or indirectly, into a computer; and
    3. Has prominently displayed a notice of copyright, or other proprietary or confidential marking, either within or on the media containing the information.
  5. “Trade secret” means information, including a formula, pattern, compilation, program, computer program, device, method, technique, or process, that:
    1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
    2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade secrets as defined in this subsection are subject to disclosure by a public agency according to chapter 1, title 74, Idaho Code.

(C) Before a material change of his 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.

History.

I.C.,§ 48-801, as added by 1981, ch. 240, § 1, p. 483; am. 1987, ch. 67, § 1, p. 121; am. 1990, ch. 213, § 68, p. 480; am. 2015, ch. 141, § 125, p. 379.

STATUTORY NOTES

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in paragraph (5)(b).

Effective Dates.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of the act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

CASE NOTES

Generally Known Test.

Where the process claimed as a trade secret was not contained in the general knowledge of those in the industry, the district court’s findings of fact, when applied to the “generally known” and “readily ascertainable” tests, supported the conclusion that there was a protectable trade secret. Basic Am., Inc. v. Shatila, 133 Idaho 726, 992 P.2d 175 (1999).

Misappropriation.

A party may not use another’s trade secret, even with independent improvements or modifications, so long as the product or process is substantially derived from the trade secret. This requires the court to apply the test for misappropriation under subsection (2) of this section. Basic Am., Inc. v. Shatila, 133 Idaho 726, 992 P.2d 175 (1999).

Plaintiff demonstrated a likelihood of success on the merits of its Idaho trade secrets act misappropriation claim; however, the injunction was limited to the sale of machines that matched those designed for and purchased by plaintiff or any machine or any other disclosure that would reveal the trade secrets of plaintiff. Scentsy, Inc. v. Performance Mfg., 2009 U.S. Dist. LEXIS 9171 (D. Idaho Feb. 9, 2009).

Because defendant had possession of computer programming source code through his work for plaintiff company (and created much of it), he acquired the code under circumstances giving rise to a duty to maintain its secrecy or limit its use; thus, if defendant used or disclosed the trade secret, he was liable for misappropriation. Justmed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010).

Court reversed and remanded the judgment in favor of plaintiff company on the company’s misappropriation claim because, besides filing for a copyright and threatening to withhold the source code, defendant made no other “use” of the source code. While defendant threatened misappropriation, his actions did not rise to the level of misappropriation. Justmed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010).

Process.
Trade Secret.

Trade secrets can consist of different steps that themselves can be readily ascertainable, but the process as a whole may not be readily ascertainable Basic Am., Inc. v. Shatila, 133 Idaho 726, 992 P.2d 175 (1999). Trade Secret.

Six factors that can be used to show that given information is a trade secret: (1) the extent to which the information is known outside the plaintiff’s business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and his competitors; (5) the amount of effort or money expended by him in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Wesco Autobody Supply v. Ernest, 149 Idaho 881, 243 P.3d 1069 (2010); La Bella Vita, LLC v. Shuler, 158 Idaho 799, 353 P.3d 420 (2015).

In an action against former employees, who resigned and went to work for a competitor, customer lists, lists showing customer buying preferences, the history of customer purchases, and custom paint formulas are trade secrets. Wesco Autobody Supply v. Ernest, 149 Idaho 881, 243 P.3d 1069 (2010).

Genuine issues of fact existed as to whether a baby shower list and a salon’s client list and client-related information were taken or used for the competitor’s benefit, where there was testimony showing that the baby shower list was at least partially derived from the salon’s official client list and also used as a primary source in the creation of the competitor’s client list. La Bella Vita, LLC v. Shuler, 158 Idaho 799, 353 P.3d 420 (2015).

A sanitation company’s action alleging that a county and a competitor misappropriated its trade secrets was dismissed because the dollar amount of the company’s proposal did not constitute a trade secret. The company did not make reasonable efforts to maintain the secrecy of the information. By failing to object to the opening of its proposal after its representative knew proposals were being opened in public, the company failed to take reasonable efforts to maintain secrecy. Walco, Inc. v. County of Idaho, 159 Idaho 131, 357 P.3d 856 (2015).

Because a sanitation company’s proposal could not qualify as a trade secret once it was opened and the dollar amount was read aloud at a public meeting, without objection from the company’s representative, a county commissioner’s possession of the proposal after the meeting could not constitute misappropriation. Walco, Inc. v. County of Idaho, 159 Idaho 131, 357 P.3d 856 (2015).

A sanitation company did not make reasonable efforts to maintain the secrecy of the information in its bid when it did not object to the bid being opened in a public meeting; the sealing of a letter the company’s counsel sent to the county was insufficient to create a genuine issue of material fact that the company took reasonable steps to maintain the secrecy of the envelope’s contents. Walco, Inc. v. County of Idaho, 159 Idaho 131, 357 P.3d 856 (2015).

A list containing the names and addresses of individuals, some of whom were customers of former employer, an insurance company, did not constitute a trade secret, where the list was almost wholly generated from alternative and independent sources and contained generally known information. Trumble v. Farm Bureau Mut. Ins. Co., — Idaho —, 456 P.3d 201 (2019).

The legislature did not intend the Idaho Trade Secrets Act to be read so broadly that merely hiring a competitor’s employee constitutes acquiring a trade secret, because employees will naturally take with them the skills, training and knowledge acquired from previous employment. Trumble v. Farm Bureau Mut. Ins. Co., — Idaho —, 456 P.3d 201 (2019).

Cited Insurance Assocs. Corp. v. Hansen, 111 Idaho 206, 723 P.2d 190 (Ct. App. 1986); Insurance Assocs. Corp. v. Hansen, 116 Idaho 948, 782 P.2d 1230 (1989); Northwest Bec-Corp v. Home Living Serv., 136 Idaho 835, 41 P.3d 263 (2002).

Cited
Idaho Law Review.

Idaho Law Review. — Hydraulic Fracturing: Trade Secrets and the Mandatory Disclosure of Fracturing Water Composition, Keith B. Hall. 49 Idaho L. Rev. 399 (2013).

ALR.

§ 48-802. Injunctive relief.

  1. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated 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 no longer than 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 misappropriation that renders a prohibitive injunction inequitable.
  3. In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
History.

I.C.,§ 48-802, as added by 1981, ch. 240, § 1, p. 483; am. 1990, ch. 274, § 1, p. 774.

CASE NOTES

Language of Injunction.

Because defendant did not object to the specificity of the injunction’s language at the hearing held to determine the language to be employed in the injunction, defendant could not later claim that the trade secret was too vague to comport with the specificity requirement of Idaho R. Civ. P. Rule 65(d). Basic Am., Inc. v. Shatila, 133 Idaho 726, 992 P.2d 175 (1999).

Limited Injunction.

Plaintiff demonstrated a likelihood of success on the merits of its Idaho trade secrets act claim; however, the injunction was limited to the sale of machines that matched those designed for and purchased by plaintiff or any machine or any other disclosure that would reveal the trade secrets of plaintiff. Scentsy, Inc. v. Performance Mfg., 2009 U.S. Dist. LEXIS 9171 (D. Idaho Feb. 9, 2009).

Actual or threatened misappropriation may be enjoined; therefore, while damages for misappropriation of a trade secret were inappropriate because of the lack of “use” or “disclosure,” as contemplated in the context of trade secret protection, the district court could grant an injunction against defendant’s threatened use or disclosure of the source code if appropriate. Justmed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010).

RESEARCH REFERENCES

ALR.

§ 48-803. Damages.

  1. Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can 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. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.
  2. If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (1) of this section.
History.

I.C.,§ 48-803, as added by 1981, ch. 240, § 1, p. 483; am. 1990, ch. 274, § 2, p. 774.

CASE NOTES

Damages.

Company which manufactured and marketed hydrocutters, devices which cut potatoes into french fries using water, was not entitled to an award of development costs in misappropriation of trade secrets action, where misappropriator did not exploit misappropriated trade secrets or receive unjust enrichment as a result of his action, and where manufacturer failed to introduce reasonable royalty rational or case law as a basis for awarding development costs at trial, reviewing court would not address issue on appeal. GME, Inc. v. Carter, 128 Idaho 597, 917 P.2d 754 (1996).

Expert Testimony.

Damage awards can be based on expert testimony. Basic Am., Inc. v. Shatila, 133 Idaho 726, 992 P.2d 175 (1999).

Misappropriation.

Because a sanitation company’s proposal did not qualify as a trade secret once it was opened and the dollar amount was read aloud at a public meeting, without objection from the company’s representative, a county commissioner’s possession of the proposal after the meeting could not constitute misappropriation. Walco, Inc. v. County of Idaho, 159 Idaho 131, 357 P.3d 856 (2015).

RESEARCH REFERENCES
ALR.

§ 48-804. Preservation of secrecy.

In an action under this chapter, a 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, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

History.

I.C.,§ 48-804, as added by 1981, ch. 240, § 1, p. 483.

§ 48-805. Statute of limitations.

An action for misappropriation must be brought within three (3) 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.

History.

I.C.,§ 48-805, as added by 1981, ch. 240, § 1, p. 483.

§ 48-806. Effect on other law.

  1. Except as provided in subsection (2) of this section, this chapter displaces conflicting tort, restitutionary, and other law of this state providing civil liability remedies for misappropriation of a trade secret.
  2. This chapter does not affect:
    1. Contractual remedies, whether or not based upon misappropriation of a trade secret; or
    2. Other civil remedies that are not based upon misappropriation of a trade secret; or
    3. Criminal remedies, whether or not based upon misappropriation of a trade secret.
History.

I.C.,§ 48-806, as added by 1981, ch. 240, § 1, p. 483; am. 1990, ch. 274, § 3, p. 774.

§ 48-807. Short title.

This chapter may be cited as the “Idaho Trade Secrets Act.”

History.

I.C.,§ 48-807, as added by 1981, ch. 240, § 1, p. 483.

Chapter 9 NEW MOTOR VEHICLE WARRANTIES — MANUFACTURER’S DUTY TO REPAIR, REFUND OR REPLACE

Sec.

§ 48-901. Definitions.

For purposes of this chapter, the following terms have the following meanings:

  1. “Consumer” means the purchaser or lessee, other than for purposes of resale or sublease, of a new motor vehicle used for personal business use, personal, family or household purposes, or a person to whom the new motor vehicle is transferred for the same purposes during the duration of an express warranty applicable to the motor vehicle.
  2. “Early termination costs” means expenses and obligations incurred by a motor vehicle lessor as a result of an early termination of a written lease agreement and surrender of a motor vehicle to a manufacturer under section 48-904, Idaho Code, including penalties for prepayment of finance arrangements.
  3. “Informal dispute settlement mechanism” means an arbitration process or procedure by which the manufacturer attempts to resolve disputes with consumers regarding motor vehicle nonconformities and repairs that arise during the vehicle’s warranty period.
  4. “Lease” means a contract in the form of a lease or bailment for the use of personal property by a natural person for a period of time exceeding four (4) months, used for personal business use, personal, family, or household purposes, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease.
  5. “Manufacturer” means a person engaged in the business of manufacturing, assembling or distributing motor vehicles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least ten (10) new motor vehicles.
  6. “Manufacturer’s express warranty” and “warranty” mean the written warranty of the manufacturer of a new motor vehicle of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.
  7. “Motor vehicle” means a motor vehicle as defined in chapter 1, title 49, Idaho Code, which is sold or licensed in this state but does not include:
    1. Motorcycle or farm tractor as defined in sections 49-107 and 49-114, Idaho Code; or
    2. Trailer as defined in section 49-121, Idaho Code; or
    3. Any motor vehicle with a gross laden weight over twelve thousand (12,000) pounds.
  8. “Motor vehicle lessor” means a person who holds title to a motor vehicle leased to a lessee under a written lease agreement or who holds the lessor’s rights under such agreement.
History.

I.C.,§ 48-901, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Prior Laws.

Former§§ 48-901, and 48-903 to 48-909, which comprised I.C. 48-901, and 48-903 to 48-909, as added by 1988, ch. 340, § 1, were repealed by S.L. 1998, ch. 333, § 1.

§ 48-902. Manufacturer’s duty to repair — Service and repair facilities.

  1. If a new motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of the applicable express warranties or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer, or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, the manufacturer, its agent, or its authorized dealer shall make the repairs necessary to conform the vehicle to the applicable express warranties, notwithstanding the fact that the repairs are made after the expiration of the warranty term or the two (2) year period.
  2. Every manufacturer of motor vehicles sold and for which the manufacturer has made an express warranty shall maintain sufficient service and repair facilities reasonably close to all areas in which its motor vehicles are sold to carry out the terms of the warranties or designate and authorize as service and repair facilities independent repair or service facilities reasonably close to all areas in which its motor vehicles are sold to carry out the terms of the warranties. As a means of complying with the provisions of this subsection, a manufacturer may, in a town or city where there is not a franchise market representative, enter into warranty service contracts with independent service and repair facilities.
History.

I.C.,§ 48-902, as added by 1998, ch. 333, § 2, p. 1070; am. 1999, ch. 333, § 1, p. 906.

STATUTORY NOTES

Prior Laws.

Former§ 48-902, which comprised I.C.,§ 48-902, as added by 1988, ch. 340, § 1, p. 1009; am. 1989, ch. 310, § 33, p. 769; am. 1990 ch. 235, § 1, p. 671, was repealed by S.L. 1998, ch. 333, § 1.

CASE NOTES

Decisions Under Prior Law
Lemon Law.

Because buyer may revoke acceptance only against the seller and because a finding that the purchasers had the right to revoke acceptance against automobile dealer is consistent with a finding that the dealer had not breached any warranties, jury verdict for purchasers was not inconsistent and was permissible on revocation claim against dealer and on the “lemon law” claim against automobile manufacturer. Griffith v. Latham Motors, Inc., 128 Idaho 356, 913 P.2d 572 (1996).

RESEARCH REFERENCES

ALR.

ALR. — Award of attorney’s fees under state motor vehicle warranty legislation (lemon laws). 82 A.L.R.5th 501.

§ 48-903. Manufacturer’s duty to refund or replace.

  1. If the manufacturer, its agents, or its authorized dealers are unable to conform the new motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which impairs the use or market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall either replace the new motor vehicle with a comparable motor vehicle or accept return of the vehicle from the consumer and refund to the consumer the amount the consumer paid for the vehicle, inclusive of the value of any trade-in, not to exceed one hundred five percent (105%) of the manufacturer’s suggested retail price of the motor vehicle. The manufacturer’s suggested retail price shall include all manufacturer installed options. The one hundred five percent (105%) cap shall include the cost of any options or other modifications arranged, installed, or made by the manufacturer’s agent, or its authorized dealer within thirty (30) days after the date of original delivery. The manufacturer shall refund to the consumer all other charges including, but not limited to, sales or excise tax, license fees and registration fees, reimbursement for towing and rental vehicle expenses incurred by the consumer as a result of the vehicle being out of service for warranty repair. A reasonable allowance for the consumer’s use of the vehicle shall be deducted from the refund to the consumer not to exceed the number of miles attributable to the consumer up to the date of the arbitration hearing multiplied by the purchase price of the vehicle and divided by one hundred twenty thousand (120,000). If the manufacturer offers a replacement vehicle under this section, the consumer has the option of rejecting the replacement vehicle and requiring the manufacturer to provide a refund. Refunds must be made to the consumer, and lienholder, if any, as their interests appear on the records of the division of motor vehicles of the Idaho transportation department. A manufacturer must give to the consumer an itemized statement listing each of the amounts refunded under this section. If the amount of sales or excise tax refunded is not separately stated, or if the manufacturer does not apply for a refund of the tax within one (1) year of the return of the motor vehicle, the state tax commission may refund the tax, as determined under subsection (8) of this section, directly to the consumer and lienholder, if any, as their interests appear on the records of the division of motor vehicles. It is an affirmative defense to any claim under this chapter: (a) that an alleged nonconformity does not impair the use or market value, or (b) that a nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of a motor vehicle by anyone other than the manufacturer, its agent or its authorized dealer.
  2. It is presumed that a reasonable number of attempts have been undertaken to conform a new motor vehicle to the applicable express warranties, if: (a) the same nonconformity has been subject to repair four (4) or more times by the manufacturer, its agents, or its authorized dealers within the applicable express warranty term or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, but the nonconformity continues to exist. However, the manufacturer shall have at least one (1) opportunity to attempt to repair the vehicle before it is presumed a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranty; or (b) the vehicle is out of service by reason of repair for a cumulative total of thirty (30) or more business days during the term or during the period, whichever is the earlier date.
  3. If the nonconformity results in a complete failure of the braking or steering system of the new motor vehicle and is likely to cause death or serious bodily injury if the vehicle is driven, it is presumed that a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranties if the nonconformity has been subject to repair at least once by the manufacturer, its agents, or its authorized dealers within the applicable express warranty term or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, and the nonconformity continues to exist. However, the manufacturer shall have at least one (1) opportunity to attempt to repair the vehicle before it is presumed a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranty.
  4. The term of an applicable express warranty, the two (2) year period and the thirty (30) day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, or fire, flood, or other natural disaster.
  5. The presumption contained in subsection (2) of this section applies against a manufacturer only if the manufacturer, its agent, or its authorized dealer has received prior written notification from or on behalf of the consumer at least once and an opportunity to cure the defect alleged. If the notification is received by the manufacturer’s agent or authorized dealer, the agent or dealer must forward it to the manufacturer by certified mail, return receipt requested. However, if the manufacturer is not notified either by the consumer or the manufacturer’s agent or authorized dealer, then the manufacturer shall have at least one (1) opportunity to cure the alleged defect.
  6. The expiration of the time periods set forth in subsection (2) of this section does not bar a consumer from receiving a refund or replacement vehicle under subsection (1) of this section if the reasonable number of attempts to correct the nonconformity causing the substantial impairment occur within three (3) years following the date of original delivery of the new motor vehicle to a consumer, provided the consumer first reported the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of the applicable express warranty.
  7. The manufacturer shall provide to its agent or authorized dealer and, at the time of purchase or lease, the manufacturer’s agent or authorized dealer shall provide a written statement to the consumer in the new motor vehicle warranty guide, in 10-point all capital type, in substantially the following form: “IMPORTANT: IF THIS VEHICLE IS DEFECTIVE, YOU MAY BE ENTITLED UNDER THE STATE’S LEMON LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE OR YOUR LEASE PAYMENTS. HOWEVER, TO BE ENTITLED TO REFUND OR REPLACEMENT, YOU MUST FIRST NOTIFY THE MANUFACTURER, ITS AGENT, OR ITS AUTHORIZED DEALER OF THE PROBLEM IN WRITING AND GIVE THEM AN OPPORTUNITY TO REPAIR THE VEHICLE. YOU ALSO HAVE A RIGHT TO SUBMIT YOUR CASE TO THE CONSUMER ARBITRATION PROGRAM WHICH THE MANUFACTURER MUST OFFER IN THIS STATE.” (8) The amount of the sales or excise tax to be paid by the manufacturer to the consumer under subsection (1) of this section shall be the tax paid by the consumer when the vehicle was purchased less an amount equal to the tax paid multiplied by a fraction, the denominator of which is the purchase price of the vehicle and the numerator of which is the allowance deducted from the refund for the consumer’s use of the vehicle.
History.

I.C.,§ 48-903, as added by 1998, ch. 333, § 2, p. 1070; am. 1999, ch. 333, § 2, p. 906.

STATUTORY NOTES

Cross References.

State tax commission,§ 63-101.

Prior Laws.

Former§ 48-903 was repealed. See Prior Laws,§ 48-901.

§ 48-904. Manufacturer’s duty to consumers with leased vehicles.

A consumer who leases a new motor vehicle has the same rights against the manufacturer under this section as a consumer who purchases a new motor vehicle, except that, if it is determined that the manufacturer must accept return of the consumer’s leased vehicle pursuant to section 48-903, Idaho Code, then the consumer lessee is not entitled to a replacement vehicle, but is entitled only to a refund as provided in this section. In such a case, the consumer’s leased vehicle shall be returned to the manufacturer and the consumer’s written lease with the motor vehicle lessor must be terminated after all charges are settled. The manufacturer shall provide the consumer with a full refund of all costs and charges described below less a reasonable allowance for use. The manufacturer shall provide to the consumer a refund of the pro rata amount of any down payment paid by the consumer on the written lease. The pro rata amount of such a refund shall be the amount of the down payment divided by the number of months of the lease agreement and that amount multiplied by the number of months remaining after the date of the arbitration. The manufacturer shall also refund to the consumer amounts identified as additional charges set forth in section 48-903, Idaho Code, if actually paid by the consumer. The reasonable allowance for use shall be the lease payments made by the consumer until the time of the award of a refund. The manufacturer shall provide the motor vehicle lessor or its assignee with a full refund of the early termination charges plus the residual value of the vehicle, as specified in the lease agreement. The amount of any refund by the manufacturer to the consumer for the pro rata portion of the down payment plus the amount of the refund to the motor vehicle lessor or its assignee by the manufacturer shall not exceed one hundred five percent (105%) of the vehicle’s original manufacturer’s suggested retail price.

History.

I.C.,§ 48-904, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Prior Laws.

Former§ 48-904 was repealed. See Prior Laws,§ 48-901.

§ 48-905. Resale or re-lease of returned motor vehicle.

  1. If a motor vehicle has been returned under the provisions of section 48-903, Idaho Code, or a similar statute of another state, whether as the result of a legal action or as the result of an informal dispute settlement proceeding, it may not be resold or re-leased in this state unless:
    1. The manufacturer provides the same express warranty it provided to the original purchaser, except that the term of the warranty need only last for twelve thousand (12,000) miles or twelve (12) months after the date of resale, whichever is earlier; and
    2. The manufacturer provides the consumer with a written statement on a separate piece of paper, in 10-point all capital type, in substantially the following form: “IMPORTANT: THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO THE MANUFACTURER’S EXPRESS WARRANTY AND THE NONCONFORMITY WAS NOT CURED WITHIN A REASONABLE TIME AS PROVIDED BY IDAHO LAW.”
  2. Notwithstanding the provisions of subsection (1) of this section, if a new motor vehicle has been returned under the provisions of section 48-903, Idaho Code, or a similar statute of another state because of a nonconformity resulting in a complete failure of the braking or steering system of the motor vehicle likely to cause death or serious bodily injury if the vehicle was driven and the failure has not been repaired by the manufacturer, its agent or its authorized dealer, the motor vehicle may not be resold in this state.

The provisions of this chapter apply to the resold or re-leased motor vehicle for full term of the warranty required under this section. If a manufacturer has a program similar to the requirements of this subsection and that program provides, at a minimum, substantially the same protections for subsequent consumers, then the manufacturer shall be considered to be in compliance with this subsection.

History.

I.C.,§ 48-905, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Prior Laws.

Former§ 48-905 was repealed. See Prior Laws,§ 48-901.

§ 48-906. Alternative dispute settlement mechanism.

  1. Any manufacturer doing business in this state, entering into franchise agreements for the sale of its motor vehicles in this state, or offering express warranties on its motor vehicles sold or distributed for sale in this state shall operate, or participate in, an informal dispute settlement mechanism located in the state of Idaho which complies with the provisions of title 16, code of federal regulations, part 703, and the requirements of this section. The provisions of section 48-903, Idaho Code, concerning refunds or replacement do not apply to a consumer who has not first used this mechanism before commencing a civil action, unless the manufacturer allows a consumer to commence an action without first using this mechanism.
  2. An informal dispute settlement mechanism provided for by this chapter shall, at the time a request for arbitration is made, provide to the consumer and to each person who will arbitrate the consumer’s dispute, information about this chapter as approved and directed by the attorney general, in consultation with interested parties. The informal dispute settlement mechanism shall permit the parties to present or submit any arguments based on this chapter and shall not prohibit or discourage the consideration of any such arguments.
  3. If, in an informal dispute settlement mechanism, it is decided that a consumer is entitled to a replacement vehicle or refund under section 48-903, Idaho Code, then any refund or replacement offered by the manufacturer or selected by a consumer shall include and itemize all amounts authorized by section 48-903, Idaho Code. If the amount of excise tax refunded is not separately stated, or if the manufacturer does not apply for a refund of the tax within one (1) year of the return of the motor vehicle, the state tax commission may refund the sales tax, as determined under subsection (8) of section 48-903, Idaho Code, directly to the consumer and lienholder, if any, as their interests appear on the records of the division of motor vehicles of the Idaho transportation department.
  4. No documents shall be received by any informal dispute settlement mechanism unless those documents have been provided to each of the parties in the dispute at or prior to the mechanism’s meeting, with an opportunity for the parties to comment on the documents either in writing or orally. If a consumer is present during the informal dispute settlement mechanism’s meeting, the consumer may request postponement of the mechanism’s meeting to allow sufficient time to review any documents presented at the time of the meeting which had not been presented to the consumer prior to the meeting.
  5. The informal dispute settlement mechanism shall allow each party to appear and make an oral presentation in the state of Idaho unless the consumer agrees to submit the dispute for decision on the basis of documents alone or by telephone, or unless the party fails to appear for an oral presentation after reasonable prior written notice. However, the manufacturer or its representative may participate in the informal dispute settlement mechanism’s meeting by telephone if it chooses. If the consumer agrees to submit the dispute for decision on the basis of documents alone, then manufacturer or dealer representatives may not participate in the discussion or decision of the dispute.
  6. Consumers shall be given an adequate opportunity to contest a manufacturer’s assertion that a nonconformity falls within intended specifications for the vehicle by having the basis of the manufacturer’s claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement hearing.
  7. Where there has been a recent attempt by the manufacturer to repair a consumer’s vehicle, but no response has yet been received by the informal dispute mechanism from the consumer as to whether the repairs were successfully completed, the parties must be given the opportunity to present any additional information regarding the manufacturer’s recent repair attempt before any final decision is rendered by the informal dispute settlement mechanism. This provision shall not prejudice a consumer’s rights under this chapter.
  8. If the manufacturer knows that a technical service bulletin directly applies to the specific mechanical problem being disputed by the consumer, then the manufacturer shall provide the technical service bulletin to the consumer at reasonable cost upon request. The mechanism shall review any such technical service bulletins submitted by either party.
  9. A consumer may be charged a fee to participate in an informal dispute settlement mechanism required by this chapter, but the fee may not exceed the conciliation court filing fee in the county where the arbitration is conducted.
  10. Any party to the dispute has the right to be represented by an attorney in an informal dispute settlement mechanism.
  11. The informal dispute settlement mechanism has all the evidence-gathering powers granted an arbitrator under the uniform arbitration act.
  12. A decision issued in an informal dispute settlement mechanism required by this section may be in writing and signed.
History.

I.C.,§ 48-906, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

State tax commission,§ 63-101.

Uniform arbitration act,§ 7-901 et seq.

Prior Laws.

Former§ 48-906 was repealed. See Prior Laws,§ 48-901.

CASE NOTES

Decisions Under Prior Law
Arbitration Procedure.

Because missing information of telephone number and statement was not a substantial departure from the requirements of the federal regulations for arbitration procedures under 16 CFR Part 703, automobile manufacturer’s arbitration procedure was qualified under§ 48-906 and defendants were not entitled to treble damages under§ 48-908. Griffith v. Latham Motors, Inc., 128 Idaho 356, 913 P.2d 572 (1996).

§ 48-907. Effect and admissibility of decision by informal dispute settlement mechanism.

The decision issued in an informal dispute settlement mechanism required by this chapter is nonbinding on the parties involved, unless otherwise agreed by the parties. Any party, upon application, may remove the decision to district court for a trial de novo. If the manufacturer is aggrieved by the decision of the informal dispute settlement mechanism, an application to remove the decision must be filed in the district court within thirty (30) days after the date the decision is received by the parties. If the application to remove is not made within thirty (30) days, then the district court shall, upon application of a party, issue an order confirming the decision. A written decision issued by an informal dispute settlement mechanism, and any written findings upon which the decision is based, are admissible as nonbinding evidence in any subsequent legal action and are not subject to further foundation requirements.

History.

I.C.,§ 48-907, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Prior Laws.

Former§ 48-907 was repealed. See Prior Laws,§ 48-901.

§ 48-908. Treble damages for bad faith appeal of decision.

If the district court finds that a party has removed a decision of an informal dispute settlement mechanism in bad faith, by asserting a claim or defense that is frivolous and costly to the other party, or by asserting an unfounded position solely to delay recovery by the other party, then the court shall award to the prevailing party three (3) times the actual damages sustained, together with costs and attorney’s fees.

History.

I.C.,§ 48-908, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Prior Laws.

Former§ 48-908 was repealed. See Prior Laws,§ 48-901.

CASE NOTES

Decisions Under Prior Law
Arbitration Procedure.

Because missing information of telephone number and statement was not a substantial departure from the requirements of the federal regulations for arbitration procedures under 16 CFR Part 703, automobile manufacturer’s arbitration procedure was qualified under§ 48-906 and defendants were not entitled to treble damages under§ 48-908. Griffith v. Latham Motors, Inc., 128 Idaho 356, 913 P.2d 572 (1996).

§ 48-909. Civil remedy.

Any consumer injured by a violation of this chapter may bring a civil action to enforce this chapter and recover costs and disbursements, including reasonable attorney’s fees incurred in the civil action. However, the provisions of this section do not include recovery of attorney’s fees previously incurred in the course of informal dispute resolution. In addition to the remedies provided herein, the attorney general may, when in the public interest, bring an action pursuant to the Idaho consumer protection act, chapter 6, title 48, Idaho Code, against any manufacturer for violation of this chapter. For purposes of such action, violations of this chapter shall be deemed to be violations of Idaho’s consumer protection act. In any such action, the attorney general and district court shall have the same authority as is granted the attorney general and district court under the Idaho consumer protection act.

History.

I.C.,§ 48-909, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Consumer protection act,§ 48-601 et seq.

Prior Laws.

Former§ 48-909 was repealed. See Prior Laws,§ 48-901.

§ 48-910. Limitation on actions.

A civil action brought under this chapter must be commenced within three (3) years of the date of original delivery of the new motor vehicle to a consumer, except that if the consumer applies to an informal dispute settlement mechanism within three (3) years of the date of original delivery of the new motor vehicle to a consumer, and if the consumer is aggrieved by the decision of the informal dispute settlement mechanism, then any appeal of that decision brought under this chapter must be commenced within three (3) months after the date of the final decision by the mechanism.

History.

I.C.,§ 48-910, as added by 1998, ch. 333, § 2, p. 1070.

§ 48-911. Remedy nonexclusive.

Nothing in this chapter limits the rights or remedies which are otherwise available to a consumer under any other law.

History.

I.C.,§ 48-911, as added by 1998, ch. 333, § 2, p. 1070.

§ 48-912. Disclosure requirement.

In addition to any investigative powers authorized by law, the attorney general may inspect the records of the informal dispute settlement mechanism upon reasonable notice, during regular business hours, and may make available to the public information about the operation of the mechanism, but data on an individual case may not be disclosed without the prior consent of the affected parties.

History.

I.C.,§ 48-912, as added by 1998, ch. 333, § 2, p. 1070.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-913. Dealer liability.

Nothing in this chapter imposes liability on a dealer or creates an additional cause of action by a consumer against a dealer, except for written express warranties made by the dealer apart from the manufacturer’s warranties. The manufacturer shall not charge back or require reimbursement by the dealer for any costs, including, but not limited to, any refunds or vehicle replacements, incurred by the manufacturer arising out of this chapter, unless there is evidence that the related repairs had not been carried out by the dealer in a timely manner or in a manner substantially consistent with the manufacturer’s published instructions.

History.

I.C.,§ 48-913, as added by 1998, ch. 333, § 2, p. 1070.

Chapter 10 IDAHO TELEPHONE SOLICITATION ACT

Sec.

§ 48-1001. Legislative findings and intent.

  1. The use of telephones for commercial solicitation is rapidly increasing. This form of communication offers unique benefits, but also entails special risks and the potential for abuse. Many Idaho residents and businesses have lost money or suffered harm primarily as a result of out-of-state telemarketing abuse. For the general welfare of the public and in order to protect the integrity of the telemarketing industry, the following provisions of law are deemed necessary.
  2. It is the intent of the legislature in enacting this chapter to safeguard the public against deceit and financial hardship, to insure, foster and encourage competition and fair dealings among telephone solicitors by requiring adequate disclosure, and to prohibit representations that have the capacity, tendency, or effect of misleading a purchaser. The provisions of this chapter are remedial, and shall be construed and applied liberally to accomplish the above-stated purposes.
  3. This chapter shall be known and may be cited as the “Idaho Telephone Solicitation Act.”
History.

I.C.,§ 48-1001, as added by 1992, ch. 27, § 1, p. 83.

CASE NOTES

Cited

Drug Testing Compliance Grp., LLC v. DOT Compliance Service, 161 Idaho 93, 383 P.3d 1263 (2016).

§ 48-1002. Definitions.

In this chapter:

  1. “Business days” means all days of the week except Saturdays and Sundays and all other legal holidays as defined in section 73-108, Idaho Code.
  2. “Conducting business” means making telephone solicitations either to or from locations within the state of Idaho.
  3. “Established business relationship” means a relationship that:
    1. Was formed, prior to a telephone solicitation, through a voluntary, two-way communication between a seller or telephone solicitor and a residential subscriber, with or without consideration, on the basis of an application, purchase, ongoing contractual agreement, or commercial transaction between the parties regarding products or services offered by such seller or telephone solicitor;
    2. Has not been previously terminated by either party; and
    3. Currently exists or has existed within the immediately preceding eighteen (18) months.
  4. “Goods” means any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value.
  5. “Minor” means any person less than eighteen (18) years of age.
  6. “Newspaper of general circulation” means a newspaper which holds a second class mailing permit from the United States postal service, has at least two hundred (200) subscribers, is made up of at least four (4) pages of at least five (5) columns, is not produced through any type of mimeographing process, and has been published or distributed within the state of Idaho on a weekly basis for at least seventy-eight (78) consecutive weeks, or on a daily basis, which is defined to be no less than five (5) days of any one (1) week, at least twelve (12) months immediately preceding any telephone solicitation done by or on behalf of such newspaper.
  7. “Person” means natural persons, partnerships, both limited and general, corporations, both foreign and domestic, companies, trusts, business entities, associations, both incorporated and unincorporated, and any other legal entity or any group associated in fact although not a legal entity, or any agent, assign, heir, servant, employee or representative thereof.
  8. “Purchaser” means a person who is solicited to become or does become obligated to a telephone solicitor.
  9. “Services” means any work, labor, help, assistance or instruction wherever provided or performed.
  10. “Telephone directory of general circulation” means a directory containing telephone numbers of individual residents and/or businesses which is published on a community-wide or regional basis and which is widely available to persons residing in such community or region through free distribution or direct purchase of said directory without the requirement of other purchases or affiliations.
  11. “Telephone solicitation” means:
    1. Any unsolicited telephone call to a purchaser for the purpose of asking, inducing, inviting, requesting, or encouraging the purchaser to purchase or invest in goods or services during the course of a telephone call; or
    2. Any communication in which:
      1. A free gift, award, or prize is offered, or in which it is represented or implied that goods or services are offered below the regular price of the goods or services; and (ii) A return telephone call is invited or the communication is followed up by a call to the purchaser by the telephone solicitor; and
      2. It is intended during the course of the return or follow-up call with the purchaser that an agreement to purchase, or a purchase be made.
    3. For purposes of this subsection, “communication” means a written or oral statement or notification or advertisement transmitted to the purchaser through any means.
  12. “Telephone solicitor” means any person who, on his own behalf or through other persons or through use of an automatic dialing-announcing device, engages in a telephone solicitation.
  13. “Unsolicited advertisement” means any advertisement offering goods or services which is transmitted to any person without that person’s prior express invitation or permission unless an established business relationship exists between the sender and recipient which has not been terminated by either party.
  14. “Written confirmation” means a writing that includes the following information: the date of purchase, the telephone solicitor’s complete address and registration number, a listing of all goods and/or services purchased, a listing of the price of each good and/or service purchased, the total obligation incurred by the purchaser, and the notice of cancellation as set forth in subsection (2) of section 48-1004, Idaho Code.
History.

I.C.,§ 48-1002, as added by 1992, ch. 27, § 1, p. 83; am. 1998, ch. 331, § 1, p. 1064; am. 2000, ch. 452, § 2, p. 1422; am. 2004, ch. 102, § 1, p. 358.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 2000, ch. 452 provides that the act shall be in full force and effect on and after January 1, 2001.

CASE NOTES

Cited

Drug Testing Compliance Grp., LLC v. DOT Compliance Service, 161 Idaho 93, 383 P.3d 1263 (2016).

§ 48-1003. Unlawful acts.

  1. It is an unlawful act for a telephone solicitor to:
    1. Intimidate or torment any person of normal and reasonable sensitivities in connection with a telephone solicitation;
    2. Refuse to hang up and free the purchaser’s line immediately once requested to do so by the purchaser;
    3. Misrepresent the price, quality, or availability of the goods or services being offered to the purchaser, or not to disclose all material matters relating directly or indirectly to the offered goods or services;
    4. Advertise, represent, or imply that the person has the approval or endorsement of any government, governmental office, or agency, unless such is the fact;
    5. Advertise, represent, or imply that the person has a valid registration number when the person does not;
    6. Utilize any device or method to block or mislead the intended recipient of the call as to the identity of the solicitor, or the trade name of the person being represented by the solicitor on a caller identification telecommunication device;
    7. Fail to comply with the provisions of section 48-603A, Idaho Code;
    8. Violate any applicable provision or requirement of this chapter; and
    9. Send an unsolicited advertisement to a telephone facsimile machine.
  2. Any violation of the provisions of this chapter is an unlawful, unfair, and deceptive act or practice in trade or commerce for the purpose of applying the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
History.

I.C.,§ 48-1003, as added by 1992, ch. 27, § 1, p. 83; am. 1997, ch. 224, § 1, p. 660; am. 1999, ch. 46, § 1, p. 108.

STATUTORY NOTES

Legislative Intent.

Section 1 of S.L. 1997, ch. 75 read: “The Legislature finds that with respect to pay-per-telephone call complaints received by state agencies, the overwhelming majority of them involve disputes over whether the consumer called or did not place a significant number of instances, the consumer being charged did not place the call in question. Nevertheless, these citizens have been subjected to various collection efforts, some unconscionable, which seek to coerce consumers into paying the charges regardless of their authenticity. These consumers are faced with the treat of lawsuits, notoriety, and embarrassment if they decline to pay. Therefore, this state’s policy shall be as stated in a new Section 48-1108, Idaho Code, which is that, unless excepted, charges for any adult entertainment pay-per-telephone call shall be void and unenforceable if the consumer has not first entered into a presubscription or comparable agreement, as defined in Section 48-1102, Idaho Code, to purchase the adult entertainment pay-per-telephone call. Also, any effort by the provider of the adult entertainment pay-per-telephone call to collect the charges absent an agreement shall be considered a false and deceptive practice in violation of the Idaho Consumer Protection Act.”

§ 48-1003A. No telephone solicitation contact list.

    1. Any Idaho residential, mobile or telephonic paging device telephone subscriber desiring to be placed on the Idaho “no telephone solicitation contact” list, indicating that the subscriber does not wish to receive telephone solicitations, may be placed upon such list through a procedure approved by the attorney general. (1)(a) Any Idaho residential, mobile or telephonic paging device telephone subscriber desiring to be placed on the Idaho “no telephone solicitation contact” list, indicating that the subscriber does not wish to receive telephone solicitations, may be placed upon such list through a procedure approved by the attorney general.
    2. Notwithstanding any other provision of this chapter, a national “do-not-call” registry established and maintained by the federal trade commission, pursuant to 16 CFR 310.4(b)(1)(iii)(B), may serve as the Idaho “no telephone solicitation contact” list provided by this chapter. The attorney general may provide to the federal trade commission, for inclusion in the national “do-not-call” registry, the telephone numbers of Idaho residents that are on the Idaho “no telephone solicitation contact” list.
  2. It is a violation of the provisions of this chapter for a telephone solicitor to make or cause to be made any telephone solicitation, as defined by section 48-1002(11)(a), Idaho Code, to any telephone number which is assigned by a telephone company to an Idaho resident listed on the Idaho “no telephone solicitation contact” list when that telephone number has been on such list for at least three (3) months prior to the date the telephone solicitation is made.
  3. Section 48-1006, Idaho Code, notwithstanding, any violation of the provisions of this section shall subject the person violating the terms of the provisions of this section to a civil penalty, to be imposed by the district court, as follows: for the first violation, not to exceed five hundred dollars ($500); for the second violation, not to exceed two thousand five hundred dollars ($2,500); for the third and subsequent violations, not to exceed five thousand dollars ($5,000) per violation. Penalties received under the provisions of this section shall be expended pursuant to legislative appropriation.
  4. This section is not applicable to telephone solicitations:
    1. To a telephone subscriber’s commercial or business telephone number;
    2. Where an established business relationship exists, as defined in subsection (3) of section 48-1002, Idaho Code, between the telephone solicitor and the telephone subscriber and the subscriber has not stated to the telephone solicitor that he does not wish to receive telephone solicitations made by or on behalf of the business with whom the established business relationship exists;
    3. By a minor seeking to sell a good or service, pursuant to a telephone solicitation, for a charitable purpose or organization.
  5. The attorney general shall advise telephone subscribers who register with his office under the provisions of this section of all self-help measures available to them to reduce unwanted telephone solicitations.
History.

I.C.,§ 48-1003A, as added by 2000, ch. 452, § 3, p. 1422; am. 2004, ch. 102, § 2, p. 358; am. 2013, ch. 130, § 1, p. 299.

STATUTORY NOTES

Cross References.

Attorney general,§ 64-1401 et seq.

Amendments.

The 2013 amendment, by ch. 130, rewrote paragraph (4)(b), which formerly read: “(i) Where an established business relationship exists, as defined in subsection (3) of section 48-1002, Idaho Code, between the telephone solicitor and the telephone subscriber; provided however, the established and existing business relationship exception shall not apply between a telephone company and a telephone subscriber under this section unless the telephone subscriber shall have previously consented to receive a telephone solicitation from such company or its agent; (ii) For purposes of this section, ‘telephone company’ means a person providing telecommunications services to the public, or any segment thereof, for compensation, by wire, cable, radio, lightwaves, cellular signal or other means. ‘Telecommunications services’ means the conveyance of voice, data, sign, signal, writing, sound, messages or other information at any frequency over any part of the electromagnetic spectrum”; and made minor stylistic changes.

Effective Dates.

Section 4 of S.L. 2000, ch. 452 provides that the act shall be in full force and effect on and after January 1, 2001.

§ 48-1003B. Consent required for telemarketing charges to previously obtained accounts.

  1. As used in this section:
    1. “Account” means a credit card, debit card, checking account, savings account, loan account, telephone service account, utility account or other similar account.
    2. “Account holder” means a consumer who owns an account, or a consumer who has authority to cause a charge or debit to an account.
    3. “Authorization” means an account holder providing express consent to a telemarketer or person acting on behalf of the telemarketer, to charge or cause to be charged the account holder’s account for the purchase of goods or services. Authorization is not effective until the account holder has been advised, clearly and conspicuously:
      1. That the telemarketer has the account holder’s account number;
      2. That the telemarketer is going to charge the account holder’s account;
      3. The specific account that will be charged;
      4. The specific amount that the account holder’s account will be charged; and
      5. The name, address and telephone number of the person who will be charging the account holder’s account.
    4. “Charge” means a charge or debit, or an attempt to charge or debit, an account, if that account can be charged without the express written authorization of the account holder to each specific charge or debit. Charge does not include a charge or debit, or an attempt to charge or debit, a telephone service account for local or long distance telecommunications services. A charge can occur by electronic or any other means.
    5. “Goods” or “services” has the meaning given to them in section 48-1002(4) and (9), Idaho Code, except that for purposes of this section these terms are limited to goods or services which are normally used for personal, household or family purposes.
    6. “Previously obtained account number telemarketing call” means a telephone call in which the telemarketer attempts to obtain account holder authorization for a current or future charge without obtaining the account number from the account holder during the call; provided however, that “previously obtained account number telemarketing call” does not include the sale of securities through a telephone call, if the telemarketer is a licensed securities agent or broker in the state of Idaho; provided further, that “previously obtained account number telemarketing call” does not include a telephone call initiated by an account holder during which the person receiving the telephone call attempts to sell, offer for sale, or otherwise induce the account holder to purchase goods or services. A “previously obtained account number telemarketing call” does not include a call to or from a current customer of the telemarketer to renew or extend, inquire about or add goods or services if the customer has previously provided account information for billing purposes to the telemarketer and the telemarketer clearly and conspicuously discloses that such renewal or extension, or additional goods or services, will be debited to the same account.
    7. “Telemarketer” means any person who regularly engages in a previously obtained account number telemarketing call.
  2. A telemarketer shall not charge or cause a charge to an account holder’s account as a result of a previously obtained account number telemarketing call unless the telemarketer has first obtained authorization from the account holder for the specific charge discussed during the call. (3) An account holder’s authorization can be in writing or given verbally. If the telemarketer uses written authorization, the telemarketer cannot charge the account holder’s account until the account holder’s written authorization is received by the telemarketer. If the telemarketer uses verbal authorization, either (i) the authorization must be audio taped by the telemarketer and the telemarketer must advise the account holder that his or her authorization is being recorded or (ii) the account holder must disclose the last four (4) digits of the account holder’s account number if the telemarketer has reasonable procedures in effect to verify that such digits as provided by the account holder match the last four digits of the account to be charged. Authorizations must be kept and maintained for a period of two (2) years and must also be made available to the account holder upon written request.

(4)(a) In the case where a telemarketer utilizes a voice response unit, whether inbound or outbound, an account holder may give authorization by providing the last four (4) digits of the account holder’s account number, an account number previously assigned to the account holder by the telemarketer, or an alternate unique identifier which enables the telemarketer to verify or confirm the account holder’s authorization; provided however, that the information set forth in subsection (1)(c) of this section must first be clearly and conspicuously disclosed to the account holder.

(b) For purposes of this subsection, “voice response unit” means a device which allows a user to provide or obtain information from a computer system using touch-tone input or speech input.

History.

I.C.,§ 48-1003B, as added by 2001, ch. 315, § 1, p. 1123; am. 2004, ch. 102, § 3, p. 358.

§ 48-1003C. Automatic dialing-announcing device.

  1. When a person intends to utilize an automatic dialing-announcing device to send a message by using or connecting to a telephone line, the person must, at the outset of the message, disclose the following:
    1. The name of the person for whom the message is being made;
    2. The purpose of the message; and
    3. The contact information of the caller.
  2. As used in this section:
    1. “Automatic dialing-announcing device” means a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called.
    2. “Caller” means a person who contacts, or attempts to contact, a subscriber in this state by using an automatic dialing-announcing device.
    3. “Subscriber” means a person who has subscribed to telephone service from a telephone company, or other persons living or residing with the subscribing person.
History.

I.C.,§ 48-1003C, as added by 2007, ch. 203, § 1, p. 627.

§ 48-1004. Telephone solicitor duties.

  1. Telephone solicitors shall:
    1. Register with the attorney general at least ten (10) days prior to conducting business in Idaho. All registrations shall be valid for a period of one (1) year from the effective date of the registration. Any information reported in the application which has changed during the year shall be reported within two (2) weeks of such change to the attorney general and shall be included in an amended registration form filed at the time the telephone solicitor renews his registration. Registrations may be renewed annually by applying to the attorney general and paying a registration renewal fee;
    2. File with the attorney general an irrevocable consent appointing the attorney general as an agent to receive civil process in any action, suit, or proceeding brought under this chapter;
    3. Provide his registration number to any purchaser who requests the registration number;
    4. Orally inform the purchaser at the time the purchase is completed of his right to cancel as provided in subsection 48-1004(2), Idaho Code, and state the telephone solicitor’s registration number issued by the attorney general;
    5. Provide accurate and complete information when making a registration application and possess and maintain a valid registration as required in this chapter; and
    6. Give the full street address, including the telephone number, of the telephone solicitor if a sale or purchase is completed.
  2. Unless the purchaser has an unqualified right to return the goods or cancel the services and receive a full refund, the telephone solicitor shall send a written confirmation to the purchaser, which shall contain the following statement in ten (10) point bold face type, which sets forth a purchaser’s right to cancel any agreement made pursuant to a telephone solicitation under this section:

NOTICE OF CANCELLATION

You may cancel this transaction, without any penalty or obligation whatsoever, within three business days of the date in which you receive this written confirmation.

If you cancel, all payments or other consideration which may have already been made by you will be returned within ten business days following receipt by the telephone solicitor of your cancellation notice.

If you cancel, you must return the goods to the telephone solicitor at the address listed below and at the telephone solicitor’s risk and expense within twenty-one days of the date you receive back from the telephone solicitor the payments or consideration you have already made.

To cancel this transaction, deposit in the mail or deliver a signed and dated copy of this cancellation notice or any other written notice to ..... (Name of telephone solicitor) ....., at ..... (Address of seller’s place of business) ..... not later than midnight of the third business day after which you received this notice.

I hereby cancel this transaction.

(Date)

(Buyer’s signature)

History.

I.C.,§ 48-1004, as added by 1992, ch. 27, § 1, p. 83.

STATUTORY NOTES

Cross References.

Attorney general,§ 64-1401 et seq.

CASE NOTES

Contracts Null and Void.

The telephone sales contracts of telephone solicitors who operate in violation of this chapter, including those who fail to register, are null and void and unenforceable. Drug Testing Compliance Grp., LLC v. DOT Compliance Service, 161 Idaho 93, 383 P.3d 1263 (2016).

§ 48-1005. Exemptions.

  1. The following telephone solicitors are exempt from the provisions of section 48-1004, Idaho Code:
    1. A person engaging in telephone solicitations where:
      1. The solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature; or
      2. Less than sixty percent (60%) of such person’s prior year’s sales were made as a result of telephone solicitations as defined in this chapter.
    2. A person making a telephone solicitation where the purchaser contacted has previously purchased goods or services from the person or the business entity for which the person is calling.
    3. A person making a telephone solicitation:
      1. Without the intent to make or obtain provisional acceptance of a purchase during the telephone solicitation; and
      2. Who only arranges for the major sales presentation to be made at a later face-to-face meeting between the person and the purchaser, and the later face-to-face meeting is not for the purpose of collecting the payment or delivering any item purchased.
    4. A person whose business is licensed by any federal or state of Idaho governmental agency, except the secretary of state office, which has the power to revoke any license issued by the agency.
    5. A person making a telephone solicitation solely for purposes of selling a subscription to or advertising in a newspaper or telephone directory of general circulation.
    6. A person making a telephone solicitation solely for purposes of selling a magazine, periodical, book, or musical or video recording:
      1. Under which the telephone solicitor provides the purchaser with a form which the purchaser may use to instruct the telephone solicitor not to ship the merchandise; and
      2. Which complies with the federal trade commission’s “use of negative option plans by sellers in commerce rule,” 16 CFR 425, regulation concerning “use of negative option plans by sellers in commerce” or a continuity plan, subscription arrangement, series arrangement or single purchase under which the telephone solicitor ships goods to a purchaser who has consented in advance to receive such goods and the purchaser is given the opportunity to review goods for at least seven (7) days and to receive a full refund for return of undamaged goods.
    7. A person who has at least one (1) business location in the state under the same name as that used in connection with telephone solicitations and ninety percent (90%) of the person’s business involves the purchaser’s obtaining services and products at the person’s business location.
    8. An issuer or subsidiary of an issuer that has a class of securities which is subject to section 12 of the securities exchange act of 1934 (15 USC sec. 78 l ) and which is either registered or exempt from registration under paragraphs (A), (B), (C), (E), (F), (G) or (H) of subsection (g)(2) of that section.
    9. A person who solicits sales by periodically publishing and delivering a catalog of the person’s merchandise to purchasers if the catalog:
      1. Contains a written description or illustration of each item offered for sale;
      2. Includes the business address or home office address of the telephone solicitor; (iii) Includes at least twenty-four (24) pages of written material and illustrations and are distributed in more than one state; and
      3. Has an annual circulation by mailing of not less than two hundred fifty thousand (250,000).
  2. In any action, suit, or proceeding to enforce the provisions of this chapter, the burden of proving an exemption is upon the person claiming it.
History.

I.C.,§ 48-1005, as added by 1992, ch. 27, § 1, p. 83; am. 1993, ch. 156, § 1, p. 399.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1993, ch. 156 declared an emergency. Approved March 25, 1993.

§ 48-1006. Authority of the attorney general and district court.

  1. The attorney general and the district court shall have the same authority in enforcing and carrying out the provisions of this chapter as is granted the attorney general and district courts under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  2. All penalties, costs and fees received or recovered by the attorney general shall be remitted to the consumer protection account [consumer protection fund] and expended pursuant to subsection (5) of section 48-606, Idaho Code.
  3. The attorney general shall also have the following authority:
    1. To require the registering telephone solicitor to submit information necessary to assist the attorney general in enforcing the provisions of this section;
    2. To require each registering telephone solicitor to remit a registration fee of fifty dollars ($50.00) or a registration renewal fee of twenty-five dollars ($25.00);
    3. To send to each registrant a certificate or other appropriate document demonstrating registration compliance which shall be prominently posted in a publicly accessible place at the telephone solicitor’s principal business location; and
    4. To accept service for those telephone solicitors who are required to register and appoint the attorney general as agent to receive civil process. Service may be effected by leaving a copy of the summons and complaint in the office of the attorney general, but it is not effective and complete until five (5) days after:
      1. The plaintiff forthwith sends notice of the service and a copy of the summons and complaint by registered mail to the telephone solicitor at its last address on file with the attorney general; and
      2. The plaintiff files an affidavit of compliance with the provisions of this section with the district court.
History.

I.C.,§ 48-1006, as added by 1992, ch. 27, § 1, p. 83.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The bracketed insertion in subsection (2) was added by the compiler to correct the name of the referenced fund. See§ 48-606.

§ 48-1007. Private causes of action and remedies.

  1. Any person who purchases goods or services pursuant to a telephone solicitation and thereby suffers damages as a result of any act, conduct, or practice declared unlawful in this chapter shall have the same rights and remedies in seeking and obtaining redress under this chapter as those granted under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  2. If a telephone solicitor violates any applicable provision of this chapter, any contract of sale or purchase is null and void and unenforceable.
  3. If a telephone solicitor fails to deliver the goods or services contracted for, pursuant to the federal trade commission’s “mail order merchandise rule,” 16 CFR 435, the contract to purchase is null and void.
  4. Any contract, agreement to purchase, or written confirmation executed by a purchaser which purports to waive any of the purchaser’s rights under this chapter is against public policy and shall be null and void and unenforceable.
  5. The remedies provided for in this chapter are not exclusive, and shall be in addition to any other procedures or remedies for any violation or conduct provided for in any other law.
History.

I.C.,§ 48-1007, as added by 1992, ch. 27, § 1, p. 83.

CASE NOTES

Contracts Null and Void.

The telephone sales contracts of telephone solicitors who operate in violation of this chapter, including those who fail to register, are null and void and unenforceable. Drug Testing Compliance Grp., LLC v. DOT Compliance Service, 161 Idaho 93, 383 P.3d 1263 (2016).

§ 48-1008. Liability of minors.

  1. Any minor who purchases goods or services pursuant to any telephone solicitation may disaffirm the purchase within a reasonable time after the purchase is made.
  2. No parent or legal guardian, having legal custody of a minor who is a purchaser pursuant to a telephone solicitation, shall be liable to a telephone solicitor for the purchase of goods or services pursuant to any telephone solicitation.
History.

I.C.,§ 48-1008, as added by 1992, ch. 27, § 1, p. 83.

§ 48-1009. Consumer notification — Rule making by the Idaho public utilities commission.

  1. Telephone corporations providing basic local exchange service, as defined in section 62-603, Idaho Code, shall inform customers of the provisions of this chapter. Publication of such notification in an annual insert in a billing statement mailed to customers or by conspicuous publication in the consumer information pages of local telephone directories shall relieve telephone corporations of any and all liability under this chapter to purchasers or others claiming to have suffered harm from telephone solicitors or by operation of the provisions of this chapter.
  2. The public utilities commission shall by rule prescribe the form of such notice.
History.

I.C.,§ 48-1009, as added by 1992, ch. 27, § 1, p. 83.

STATUTORY NOTES

Cross References.

Public utilities commission,§ 61-201.

§ 48-1010. Limitation of action.

  1. No private action may be brought under the provisions of this chapter more than two (2) years after the cause of action accrues.
  2. A cause of action shall be deemed to have accrued when the party bringing an action under the provisions of this chapter knows or in the exercise of reasonable care should have known about the violation of the provisions of this chapter.
History.

I.C.,§ 48-1010, as added by 1992, ch. 27, § 1, p. 83.

Chapter 11 IDAHO PAY-PER-TELEPHONE CALL ACT

Sec.

§ 48-1101. Legislative findings and intent.

  1. The use of pay-per-telephone call services for commercial solicitation is rapidly increasing. This form of communication offers unique benefits, but also entails special risks and the potential for abuse. Many consumers of goods and services have suffered serious losses because of misrepresentations and failures to disclose material facts. For the general welfare of the public and in order to protect the integrity of the pay-per-telephone call service industry, the following provisions of law are deemed necessary.
  2. It is the intent of the legislature in enacting this chapter to safeguard the public against deceit and financial hardship, to insure, foster and encourage competition and fair dealings among information providers by requiring adequate disclosure. The provisions of this chapter are remedial, and shall be construed and applied liberally to accomplish these purposes.
  3. This chapter shall be known and may be cited as the “Idaho Pay-Per-Telephone Call Act.”
History.

I.C.,§ 48-1101, as added by 1992, ch. 29, § 1, p. 90.

§ 48-1102. Definitions.

In this chapter:

  1. “Adult entertainment pay-per-telephone call” means any pay-per-telephone call service that is of a sexually prurient nature. For the purpose of this section, sexually prurient is any comment, request, suggestion, proposal, image, or other communication that, in context, is obscene, lewd, lascivious, or indecent.
  2. “Information provider” means any person, company, or corporation that controls the content of a pay-per-telephone call service. Any telephone corporation which transmits pay-per-telephone call service but does not control the content of the information transmitted is not included within this definition.
  3. “Pay-per-telephone call service” means any telecommunications service which permits simultaneous calling by a number of callers to a single telephone number and for which the calling party is assessed, by virtue of completing the call, a charge that is not dependent on the existence of a presubscription or comparable agreement and for which the caller pays a per-call or per-time-interval charge that is greater than, or in addition to, the charge for transmission of the call.
  4. “Presubscription or comparable agreement” means an agreement to purchase any pay-per-telephone call service and is evidenced by:
    1. A written contractual agreement between an information provider and a legally competent person that is executed for the sole purpose of arranging purchase of pay-per-telephone call services and is separate or easily severable from any promotions or inducements, and in which:
      1. The information provider clearly and conspicuously discloses to the consumer all material terms and conditions associated with the use of the service, including the information provider’s name and address, a business telephone number which the company may use to obtain additional information or to register a complaint, and the rates of service;
      2. The information provider agrees to notify the consumer at least one (1) billing cycle in advance of any future rate changes;
      3. The consumer agrees to use the services on the terms and conditions disclosed by the information provider; and
      4. The information provider requires the use of an identification number or other means to prevent unauthorized access to the service by the nonsubscribers; or
    2. Disclosure of a pre-existing credit, prepaid account, debit, charge, or calling card number, along with authorization to bill that number, provided that the card:
      1. Is subject to the dispute resolution procedures of the federal truth-in-lending and fair credit reporting acts;
      2. Has, upon request or application, been delivered to the person to be billed prior to assessment of charges; and
      3. Does not operate to assess charges through automatic number identification.
  5. “Telephone corporation” means any person or corporation that provides basic local exchange service or message telecommunication service.
History.

I.C.,§ 48-1102, as added by 1992, ch. 29, § 1, p. 90; am. 1997, ch. 75, § 2, p. 155.

STATUTORY NOTES

Legislative Intent.

Section 1 of S.L. 1997, ch. 75 read: “The Legislature finds that with respect to pay-per-telephone call complaints received by state agencies, the overwhelming majority of them involve disputes over whether the consumer called or did not place an adult entertainment pay-per-telephone call. The legislature finds that, in a significant number of instances, the consumer being charged did not place the call in question. Nevertheless, these citizens have been subjected to various collection efforts, some unconscionable, which seek to coerce consumers into paying the charges regardless of their authenticity. These consumers are faced with the threat of lawsuits, notoriety, and embarrassment if they decline to pay. Therefore, this state’s policy shall be as stated in a new Section 48-1108, Idaho Code, which is that, unless excepted, charges for any adult entertainment pay-per-telephone call shall be void and unenforceable if the consumer has not first entered into a presubscription or comparable agreement, as defined in Section 48-1102, Idaho Code, to purchase the adult entertainment pay-per-telephone call. Also, any effort by the provider of the adult entertainment pay-per-telephone call to collect the charges absent an agreement shall be considered a false and deceptive practice in violation of the Idaho Consumer Protection Act.”

Federal References.

The federal truth-in-lending act, referred to in paragraph (4)(b)(i), is codified as 15 U.S.C.S. § 1601 et seq.

The federal fair credit reporting act, referred to in paragraph (4)(b)(i), is codified as 15 U.S.C.S. § 1681 et seq.

§ 48-1103. Preamble message.

  1. An information provider that offers pay-per-telephone call services in this state shall include at the beginning of its service a preamble message. No preamble message shall be required for pay-per-telephone call service for which the total charge for such service is two dollars ($2.00) or less.
  2. The preamble message shall be clearly understandable and audible and state the cost of the call. The preamble must disclose all per-call charges. If the call is billed on a usage sensitive basis, the preamble must state all rates, by minute or other unit of time, any minimum charges and the total cost for calls to that service if the duration of the service can be determined.
  3. The preamble must state the name of the information provider and accurately describe the information, product, or service that the caller will receive for the fee.
  4. The preamble must inform the caller that billing will begin only after a specific identified event following the disclosure message, such as a signal tone, and must provide a reasonable opportunity for the caller to disconnect before that event.
  5. Any preamble message associated with a pay-per-telephone call service that is aimed at or likely to be of interest to children under the age of eighteen (18) must contain a statement that the caller should hang up unless he has parental permission.
  6. A caller may be provided the means to bypass the preamble message on subsequent calls, provided that the caller has sole control of that capability, except that any bypass device shall be disabled for a period of thirty (30) days following the effective date of a price increase for the service. Instructions on how to bypass must either be at the end of the preamble message or at the end of the service.
  7. If the pay-per-telephone call service originates and terminates within local exchange areas served by the same telephone corporation within the state of Idaho, the information provider may apply to the Idaho attorney general for permission to modify the preamble message. The attorney general may grant such permission if the attorney general is satisfied that the modified message will adequately disclose sufficient material facts which will safeguard the public against deceit and financial hardship. Such decision shall be final and nonappealable.
History.

I.C.,§ 48-1103, as added by 1992, ch. 29, § 1, p. 90.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1104. Advertisements.

  1. If the total charge for the pay-per-telephone call service is more than two dollars ($2.00), advertisements by information providers for pay-per-telephone call services must clearly and conspicuously disclose, as that term is defined by the Idaho consumer protection act and regulations promulgated thereunder, the price or cost of the service being advertised, and contain the information required to be set forth in subsection (2) of section 48-1103, Idaho Code, except as provided in subsection (2) of this section.
  2. For purposes of this chapter, a listing in any section of a directory in which businesses or professions are listed alphabetically and which directory is not published more often than twice in a consecutive twelve (12) month period of time, does not constitute an advertisement. Information providers that advertise pay-per-telephone call services in the section of a directory which lists businesses by subject category, and which directory is not published more often than twice in a consecutive twelve (12) month period of time, shall conspicuously disclose in the advertisement that the service is a pay-per-telephone call service but need not disclose the price or cost of the service.
History.

I.C.,§ 48-1104, as added by 1992, ch. 29, § 1, p. 90; am. 1992, ch. 100, § 1, p. 318.

STATUTORY NOTES

Compiler’s Notes.

The Idaho consumer protection act, referred to in subsection (1) of this section, is compiled as§ 48-601 et seq.

§ 48-1105. Remedies.

  1. When an information provider has failed to comply with any provision of this chapter, any obligation by a consumer that may have arisen from the dialing of a pay-per-telephone call service is void and unenforceable.
  2. Any failure to comply with any provision of this chapter is an unfair and deceptive act or practice. Any person aggrieved by a violation of this chapter shall be entitled to all available remedies against the information provider, pursuant to the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  3. The remedies provided for in this chapter are not exclusive, and shall be in addition to any other procedures or remedies for any violation or conduct provided for in any other statute.
History.

I.C.,§ 48-1105, as added by 1992, ch. 29, § 1, p. 90.

§ 48-1106. Authority of the attorney general and district court.

The attorney general and district court shall have the same authority in enforcing and carrying out the provisions of this chapter as is granted the attorney general and district court under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.

History.

I.C.,§ 48-1106, as added by 1992, ch. 29, § 1, p. 90.

STATUTORY NOTES

Cross References.

Attorney general,§ 64-1401 et seq.

§ 48-1107. Limitations of action.

  1. No private action may be brought under the provisions of this chapter more than two (2) years after the cause of action accrues.
  2. A cause of action shall be deemed to have accrued when the party bringing an action under the provisions of this chapter knows or in the exercise of reasonable care should have known about the violation of the provisions of this chapter.
History.

I.C.,§ 48-1107, as added by 1992, ch. 29, § 1, p. 90.

§ 48-1108. Adult entertainment pay-per-telephone calls.

  1. Except as provided in subsection (2) of this section, no charge of any nature for any adult entertainment pay-per-telephone call is valid and enforceable unless the consumer has first entered into a presubscription or comparable agreement to purchase the adult entertainment pay-per-telephone call. Any adult entertainment pay-per-telephone call charges incurred absent a presubscription or comparable agreement are void and unenforceable.
  2. The second and successive time a consumer receives a telephone bill that includes charges for an adult entertainment pay-per-telephone call, the charges, if incurred absent a presubscription or comparable agreement, are void and unenforceable if:
    1. The charges were incurred as the result of third-party fraud; or
    2. The bill is sent to the consumer by a telephone corporation as a holder in due course and, upon written notification to the applicable telephone corporation of the disputed charge, the telephone corporation is able to recourse the bill back to the information provider or its agent.
  3. Any information provider which, on its own, or through an agent, assign, or successor who seeks to collect a charge of any nature for an adult entertainment pay-per-telephone call that does not have a presubscription or comparable agreement evidencing the consumer’s agreement to purchase the call, has committed an unfair, unlawful and deceptive act or practice in trade and commerce for purposes of applying the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
History.

I.C.,§ 48-1108, as added by 1997, ch. 75, § 3, p. 155.

STATUTORY NOTES

Legislative Intent.
Effective Dates.

Section 4 of S.L. 1997, ch. 75 declared an emergency. Approved March 13, 1997.

Chapter 12 IDAHO CHARITABLE SOLICITATION ACT

Sec.

§ 48-1201. Legislative findings and intent.

  1. The incidents of deceptive collection of funds in the name of charities are increasing in Idaho. Many generous Idahoans and legitimate charities suffer financial losses because of misrepresentations and failures to disclose material facts by those who falsely claim to represent a charitable organization or purpose.
  2. It is the intent of the legislature to safeguard the public against deceit and financial hardship, to ensure, foster, and encourage truthful solicitation and prohibit representations that have the capacity, tendency, or effect of misleading a contributor or harming the reputation of charitable organizations that do not make such representations. The provisions of this chapter are remedial, and shall be construed and applied liberally to accomplish the above-stated purposes.
  3. This chapter shall be known and may be cited as the “Idaho Charitable Solicitation Act.”
History.

I.C.,§ 48-1201, as added by 1993, ch. 246, § 1, p. 857.

§ 48-1202. Definitions.

In this chapter:

  1. “Charitable organization” means:
    1. Any person determined by the Internal Revenue Service to be tax exempt pursuant to section 501(c)(3) of the Internal Revenue Code; or
    2. Any person who is or who holds himself out to be established for any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental, civic, veteran or other eleemosynary purpose or for the benefit of law enforcement personnel, firefighters or other persons who protect the public safety, or any person who in any manner engages in a charitable solicitation.
  2. “Charitable purpose” means:
    1. Any purpose described in Internal Revenue Code section 501(c)(3); or
    2. Any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental, civic, veteran, or other eleemosynary purpose or for the benefit of law enforcement personnel, firefighters or other persons who protect the public safety.
  3. “Charitable solicitation” means any oral or written request, directly or indirectly, for money, credit, property, financial assistance or other thing of value on the plea or representation that such money, credit, property, financial assistance or other thing of value or any portion thereof, will be used for a charitable purpose or benefit a charitable organization. No contribution need be made in order for a charitable solicitation to be deemed to have taken place.
  4. “Container” means any box, carton, package, receptacle, canister, jar, dispenser or machine that offers a product for sale or distribution as part of a charitable solicitation.
  5. “Contribution” means the grant, promise or pledge of money, credit, property, financial assistance or other thing of value in response to a charitable solicitation.
  6. “Damages” means a loss, detriment or injury, whether to person, property, reputation or rights through any act or practice declared unlawful under the provisions of this chapter.
  7. “Disclosure label” means a printed or typed notice that is legible and easy to read and is affixed to a container in a conspicuous place on containers accessible to the public. Disclosure labels shall inform the public of the following:
    1. The approximate annual percentage paid, if any, to any individual, person or charitable organization to maintain, service or collect the contributions raised by the solicitation;
    2. The net percentage or sum paid to the specific charitable purpose in the most recent calendar year;
    3. If the maintenance, service, and collection from the container is performed by volunteers or paid individuals.
  8. “Person” means natural persons, partnerships, both limited and general, corporations, both foreign and domestic, companies, trusts, business entities, associations, both incorporated and unincorporated, and any other legal entity or any group associated in fact although not a legal entity, or any agent, assign, heir, servant, employee or representative thereof.
History.

I.C.,§ 48-1202, as added by 1993, ch. 246, § 1, p. 857; am. 1996, ch. 182, § 1, p. 576.

STATUTORY NOTES
Federal References.

Section 501(c)(3) of the Internal Revenue Code, referred to in this section, is compiled as 26 U.S.C.S. § 501(c)(3).

§ 48-1203. Unlawful acts.

  1. It is unlawful for any person, except a religious corporation, a religious association, a religious educational institution or a religious society, in the planning, conduct or execution of any charitable solicitation, to utilize any unfair, false, deceptive, misleading or unconscionable act or practice. In deciding whether an act or practice is unfair, false, deceptive, misleading or unconscionable within the meaning of this subsection, definitions, standards and interpretations relating thereto under the Idaho consumer protection act and regulations promulgated thereunder shall apply.
  2. It is unlawful for a religious corporation, a religious association, a religious educational institution or a religious society, in the planning, conduct or execution of any charitable solicitation, knowingly and willfully to utilize any false, deceptive or misleading act or practice.
  3. It is unlawful for any person or charitable organization to use a container in a public place to solicit contributions by offering a product for sale knowing the container does not have a disclosure label affixed to it. However, no charitable organization shall be liable under this subsection if the container generates less than a gross amount of one hundred dollars ($100) per year or the charitable organization generates less than a gross amount of five hundred dollars ($500) per year from all sources for any charitable purpose or purposes. It is an absolute defense to prosecution under this subsection if the person or charitable organization soliciting contributions has given one hundred percent (100%) of the receipts generated by the container to the designated charitable organization to further the charitable purpose or purposes for which contributions were solicited.
History.

I.C.,§ 48-1203, as added by 1993, ch. 246, § 1, p. 857; am. 1996, ch. 182, § 2, p. 576.

STATUTORY NOTES

Cross References.

Idaho consumer protection act,§ 48-601 et seq.

§ 48-1204. Authority of the attorney general and district court.

  1. The attorney general and the district court shall have the same authority in enforcing and carrying out the provisions of this chapter as is granted the attorney general and district courts under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  2. All penalties, costs, and fees received or recovered by the attorney general shall be remitted to the consumer protection account [consumer protection fund] and expended pursuant to subsection (5) of section 48-606, Idaho Code.
History.

I.C.,§ 48-1204, as added by 1993, ch. 246, § 1, p. 857.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The bracketed insertion in subsection (2) was added by the compiler to correct the name of the referenced fund. See§ 48-606.

§ 48-1205. Private causes of action and remedies.

  1. Any person who, pursuant to a charitable solicitation, suffers damages as a result of any act, conduct, or practice declared unlawful under the provisions of this chapter, shall have the same rights and remedies in seeking and obtaining redress under the provisions of this chapter as those granted under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  2. The remedies provided for in this chapter are not exclusive, and shall be in addition to any other procedures or remedies for any violation or conduct provided for in other law.
History.

I.C.,§ 48-1205, as added by 1993, ch. 246, § 1, p. 857.

§ 48-1206. Limitation of action.

  1. No private action may be brought under the provisions of this chapter more than two (2) years after the cause of action accrues.
  2. A cause of action shall be deemed to have accrued when the party bringing an action under the provisions of this chapter knows or in the exercise of reasonable care should have known about the violation of the provisions of this chapter.
History.

I.C.,§ 48-1206, as added by 1993, ch. 246, § 1, p. 857.

Chapter 13 MUSIC LICENSING AND COPYRIGHT ENFORCEMENT ACT

Sec.

§ 48-1301. Short title.

This act shall be known and may be cited as the “Music Licensing and Copyright Enforcement Act of 1996.”

History.

I.C.,§ 48-1301, as added by 1996, ch. 330, § 1, p. 1123.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1996, Chapter 330, which is compiled as§§ 48-1301 to 48-1308.

RESEARCH REFERENCES

ALR.

§ 48-1302. Definitions.

As used in this chapter:

  1. “Copyright owner” means the owner of a copyright of a nondramatic musical or similar work recognized and enforceable under the copyright laws of the United States pursuant to title 17 of the United States Code, P.L. 94-553 (17 U.S.C. sec. 101 et seq.).
  2. “Nondramatic” means the public performance of a recorded, broadcast, or live musical work; except that “nondramatic” shall not mean the performance of a dramatic work including a play.
  3. “Performing rights society” means an association or corporation that licenses the public performances of nondramatic musical works on behalf of copyright owners, such as the American society of composers, authors and publishers (ASCAP), broadcast music, inc. (BMI), and SESAC, Inc.
  4. “Proprietor” means the owner of a retail establishment, restaurant, inn, bar, tavern, sports or entertainment facility or any other similar place of business or professional office located in the state in which the public may assemble and in which nondramatic musical works or similar copyrighted works may be performed, broadcast or otherwise transmitted for the enjoyment of members of the public there assembled.
  5. “Royalty” or “royalties” means the fees payable to a copyright owner or performing rights society for the public performance of nondramatic musical or other similar works.
History.

I.C.,§ 48-1302, as added by 1996, ch. 330, § 1, p. 1123.

STATUTORY NOTES

Compiler’s Notes.

For further information on ASCAP, referred to in subsection (3), see https://www.ascap.com .

For further information on BMI, referred to in subsection (3), see https://www.bmi.com .

For further information on SESAC, Inc., referred to in subsection (3), see https://www.sesac.com ! .

The reference and abbreviations enclosed in parentheses so appeared in the law as enacted.

§ 48-1303. Notice and information to be provided.

No performing rights society shall enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless it agrees to provide to the proprietor upon request at the proprietor’s place of business, by electronic means or otherwise:

  1. Information as to whether specific copyrighted musical works are in its repertoire; and
  2. The opportunity to review the most current available list of the performing rights society’s members or affiliates.
History.

I.C.,§ 48-1303, as added by 1996, ch. 330, § 1, p. 1123.

§ 48-1304. Royalty contract requirements.

Every contract for the payment of royalties between a proprietor and a performing rights society executed, issued or renewed in the state on or after July 1, 1996 shall be:

  1. In writing;
  2. Signed by the parties;
  3. Written to include, at a minimum, the following information:
    1. The proprietor’s name and business address and the name and location of each place of business to which the contract applies;
    2. The name of the performing rights society;
    3. The duration of the contract; and
    4. The schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of the rates for the duration of the contract.
History.

I.C.,§ 48-1304, as added by 1996, ch. 330, § 1, p. 1123.

§ 48-1305. Prohibited conduct.

No performing rights society or any agent or employee thereof shall:

  1. Enter onto the premises of a proprietor’s business for the purpose of discussing or inquiring about a contract for the payment of royalties with the proprietor or his employees, without first identifying himself to the proprietor or his employees and making known to them the purpose of the discussion or inquiry;
  2. Engage in any coercive conduct, act or practice that is substantially disruptive to a proprietor’s business;
  3. Use or attempt to use any unfair or deceptive act or practice in negotiating with a proprietor; or
  4. Fail to comply with or fulfill the obligations imposed by sections 48-1303 and 48-1304, Idaho Code. However, nothing in this chapter shall be construed to prohibit a performing rights society from conducting investigations to determine the existence of music use by a proprietor or informing a proprietor of the proprietor’s obligation under the copyright laws of the United States pursuant to title 17 of the United States Code, P.L. 94-553 (17 U.S.C. sec. 101 et seq.).
History.

I.C.,§ 48-1305, as added by 1996, ch. 330, § 1, p. 1123.

§ 48-1306. Remedies — Injunction.

Any person who suffers a violation of this chapter may bring an action to recover actual damages and reasonable attorney’s fees and seek an injunction or any other remedy available at law or in equity.

History.

I.C.,§ 48-1306, as added by 1996, ch. 330, § 1, p. 1123.

§ 48-1307. Remedies cumulative.

The rights, remedies and prohibitions contained in this chapter shall be in addition to and cumulative to any other right, remedy or prohibition accorded by common law, federal law or the statutes of the state, and nothing contained in this chapter shall be construed to deny, abrogate or impair any common law or statutory right, remedy or prohibition.

History.

I.C.,§ 48-1307, as added by 1996, ch. 330, § 1, p. 1123.

§ 48-1308. Exceptions.

This chapter shall not apply to contracts between copyright owners or performing rights societies and broadcasters licensed by the federal communications commission, or to contracts with cable operators, programmers or other transmission services. Nor shall this chapter apply to musical works performed in synchronization with an audio/visual film or tape.

History.

I.C.,§ 48-1308, as added by 1996, ch. 330, § 1, p. 1123.

RESEARCH REFERENCES

A.L.R.

§ 48-1401. Short title.

This chapter governing the sale of assistive technology devices may be cited as the “Assistive Technology Warranty Act.”

History.

I.C.,§ 48-1401, as added by 1997, ch. 276, § 1, p. 819.

§ 48-1402. Definitions.

As used in this chapter:

  1. “Assistive device” is an item, piece of equipment, or product system that is designated and used to increase, maintain or improve functional capabilities of individuals with disabilities in the areas of seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself or working. The term includes, but is not limited to: manual wheelchairs, motorized wheelchairs, motorized scooters, and other aids that enhance the mobility of an individual; hearing aids, assistive listening devices and other aids that enhance an individual’s ability to hear or communicate; voice synthesized computer modules, optical scanners, talking software, braille printers, large print materials and other devices that enhance an individual’s ability to access print or communicate; and other devices such as environmental controls, adaptive transportation aids, communication boards and modified environments. “Assistive device” does not include: (a) a transcutaneous electrical nerve stimulator, neuromuscular electrical stimulator, or dynamic range of motion splint, if the stimulator or splint is already covered by a warranty; (b) a hearing aid covered by a one (1) year express warranty to repair or replace a device with a nonconformity; and (c) items including canes, crutches, walkers, bathroom safety aids, batteries, blood pressure kits, glucose monitors, bandages, household aids, wraps and other disposable items.
  2. “Assistive device dealer” means a person who is in the business of selling new assistive devices.
  3. “Assistive device lessor” means a person who leases new assistive devices to consumers, or who holds the lessor’s rights, under a written lease.
  4. “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of sales tax and of obtaining an alternative assistive device.
  5. “Consumer” or “agency” means any of the following:
    1. The purchaser of an assistive device, if the assistive device was purchased from an assistive dealer or manufacturer for purposes other than resale;
    2. A person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive device;
    3. A person who may enforce the warranty; or
    4. A person who leases an assistive device from an assistive device lessor under a written lease.
  6. “Demonstrator” means an assistive device used primarily for the purpose of demonstration to the public.
  7. “Early termination cost” means an expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to the manufacturer. The term incurs a penalty for prepayment under a finance arrangement.
  8. “Early termination savings” means an expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to the manufacturer. The term includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
  9. “Manufacturer” means a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, a factory branch, and a warrantor of the manufacturer’s assistive device. The term does not include an assistive device dealer or lessor.
  10. “Nonconformity” means a specific condition or generic defect or malfunction, or a defect or condition that substantially impairs the use, value or safety of an assistive device, but does not include a condition or defect that is the result of abuse or unauthorized modification or alteration of the assistive device by the consumer.
  11. “Reasonable attempt to repair” means any of the following occurring within the term of an express warranty applicable to a new assistive device:
    1. The manufacturer, assistive device lessor, or any of the manufacturer’s authorized assistive device dealers accepts returns of the new assistive device for repair at least two (2) times; or
    2. The assistive device is out of service for an aggregate of at least thirty (30) cumulative days because of warranty nonconformities.
History.

I.C.,§ 48-1402, as added by 1997, ch. 276, § 1, p. 819; am. 1998, ch. 236, § 1, p. 792.

§ 48-1403. Express warranties.

  1. A manufacturer who sells or leases a new assistive device to a consumer, either directly or through an assistive device dealer or lessor, shall furnish the consumer with an express warranty to preserve or maintain the utility or performance of the assistive device. The duration of the express warranty must not be less than one (1) year after first possession of the assistive device by the consumer. If a manufacturer fails to furnish an express warranty as required by this section, the assistive device shall be covered by an express warranty as if the manufacturer had furnished an express warranty to the consumer as required by this section.
  2. If a new assistive device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor, or any of the manufacturer’s authorized assistive device dealers and makes the assistive device available for repairs before one (1) year after the first possession of the device by the consumer, the nonconformity must be repaired or replaced.
History.

I.C.,§ 48-1403, as added by 1997, ch. 276, § 1, p. 819.

§ 48-1404. Assistive device replacement or refund.

If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out, at the option of the consumer, the requirements under subsection (1)(a) or (b) or (2) of this section, whichever is appropriate.

  1. To provide for refunds, at the request of the consumer, the manufacturer shall do one (1) of the following:
    1. Accept return of the assistive device and refund to the consumer and to a holder of a perfected security interest in the consumer’s assistive device, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use; or
    2. Accept return of the assistive device, refund to the assistive device lessor and the holder of a perfected security interest in the assistive device, as their interest may appear, the current value of a written lease and refund to the consumer the amount that the consumer paid under the written lease plus collateral costs, less a reasonable allowance for use.
  2. The manufacturer shall provide a comparable new assistive device replacing the device having the nonconformity. To receive a comparable new assistive device, the consumer shall offer to transfer possession of the assistive device to the manufacturer of the assistive device having the nonconformity. No later than thirty (30) days after that offer, the manufacturer shall provide the consumer with the comparable new assistive device or a refund, and the consumer shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.
  3. If, after a reasonable attempt to repair, the nonconformity is not repaired, an assistive device lessor shall receive a refund from the manufacturer. To receive a refund, the assistive device lessor shall offer to transfer possession of a nonconforming assistive device to its manufacturer. No later than thirty (30) days after that offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
  4. Under this section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer’s early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor’s early termination savings.
  5. Under this section, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount the consumer paid or for which the written lease obligates the consumer by a fraction, the denominator of which is one thousand eight hundred twenty-five (1,825) and the numerator of which is the number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, assistive device lessor or assistive device dealer.
  6. No person may enforce the lease against the consumer after the consumer receives a refund.
History.

I.C.,§ 48-1404, as added by 1997, ch. 276, § 1, p. 819.

§ 48-1405. Nonconformity disclosure requirement.

No assistive device returned by a consumer or assistive device lessor in this state or another state may be sold or leased in this state unless full disclosure of the reason for return is made to the prospective buyer or lessee.

History.

I.C.,§ 48-1405, as added by 1997, ch. 276, § 1, p. 819.

§ 48-1406. Manufacturer’s duty to provide reimbursement for temporary replacement of assistive devices and penalties.

  1. Whenever an assistive device covered by manufacturer’s express warranty is tendered by a consumer to a dealer from whom it was purchased or exchanged for the repair of a defect, malfunction or nonconformity to which the warranty is applicable and at least one (1) of the following conditions exists, the manufacturer shall provide directly to the consumer for the duration of the repair period, a replacement assistive device or a rental assistive device reimbursement to pay for the cost incurred by the consumer for renting a replacement assistive device. The applicable conditions are as follows:
    1. The repair period exceeds ten (10) working days, including the day on which the device is tendered to the dealer for repair; or
    2. The defect, malfunction or nonconformity is the same for which the assistive device has been tendered to the dealer for repair on at least two (2) previous occasions.
  2. This section applies for the period of the manufacturer’s express warranty.
History.

I.C.,§ 48-1406, as added by 1997, ch. 276, § 1, p. 819.

§ 48-1407. Enforcement.

  1. In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of the chapter in the district court of the county where the consumer resides or where the manufacturer resides or has its principal place of business. Damages include all costs to the consumer attributable to the nonconforming device, but does not include punitive damages. The court shall award a consumer who prevails in such action the amount of any pecuniary loss, and costs and reasonable attorney’s fees, and any other equitable relief the court deems appropriate.
  2. These sections shall not be construed to limit rights or remedies available to the consumer under any other law and the remedies provided under this chapter are inclusive and in addition to any other remedies provided by law.
  3. Any waiver by a consumer of rights under this chapter is void.
History.

I.C.,§ 48-1407, as added by 1997, ch. 276, § 1, p. 819.

Chapter 15 IDAHO NONPROFIT HOSPITAL SALE OR CONVERSION ACT

Sec.

§ 48-1501. Legislative findings and intent.

  1. Nonprofit hospitals hold assets in charitable trust, and are dedicated to the specific charitable purposes set forth in the articles of incorporation of the nonprofit corporations or governing papers of the nonprofit entities operating such hospitals. Nonprofit hospitals have a substantial and beneficial effect on the provision of health care to the people of Idaho, providing as part of their charitable mission free or low-cost health care.
  2. The attorney general is entrusted by law to bring actions on behalf of the public in the event of a breach of the charitable trust, pursuant to section 67-1401, Idaho Code.
  3. This act shall be cited as the “Nonprofit Hospital Sale or Conversion Act.”
History.

I.C.,§ 48-1501, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 64-1401 et seq.

Compiler’s Notes.

The term “this act” refers to S.L. 2000, Chapter 314, which is compiled as§§ 48-1501 to 48-1512.

§ 48-1502. Definitions.

As used in this act:

  1. “Hospital” means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care for not less than twenty-four (24) hours in any week of two (2) or more nonrelated individuals suffering from illness, disease, injury, deformity, or requiring care because of old age, or a place devoted primarily to providing, for not less than twenty-four (24) hours in any week, of obstetrical or other medical or nursing care for two (2) or more nonrelated individuals.
  2. “Nonprofit hospital” means any hospital, including hospitals owned by corporations, that is organized as a nonprofit concern, however structured or created. The term also includes entities owned, governed or controlled by a nonprofit hospital. The term does not include hospitals which are operated by a governmental unit.
  3. “Nonprofit hospital conversion transaction” means:
    1. The sale, transfer, lease, exchange, optioning, or conveyance of the lesser of thirty million dollars ($30,000,000) or forty percent (40%) of the assets of a nonprofit hospital to an entity or person other than a nonprofit entity or an entity controlled by the nonprofit hospital; or
    2. The transfer of control or governance of the lesser of thirty million dollars ($30,000,000) or forty percent (40%) of the assets of a nonprofit hospital to an entity or person other than a nonprofit entity or an entity controlled by the nonprofit hospital.
    3. “Nonprofit hospital conversion transaction” does not include contracts, in the usual course of business, between the nonprofit hospital and another entity:
      1. For the provision of services to the nonprofit hospital;
      2. For the sale of equipment; or
      3. For the leasing of space.
    4. Beginning on July 1, 2001, and each July 1 thereafter, the sums of thirty million dollars ($30,000,000) referenced in subsections (3)(a) and (3)(b) of this section, shall increase or decrease in accordance with the percentage amount change in the hospital services component of the consumer price index as published by the bureau of labor statistics of the United States department of labor.
  4. “Person” means any individual, partnership, trust, estate, corporation, association, joint venture, joint stock company, insurance company or other organization.
  5. “Charitable trust interest” shall mean those factors specifically listed in section 48-1506, Idaho Code.
History.

I.C.,§ 48-1502, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 2000, Chapter 314, which is compiled as§§ 48-1501 to 48-1512.

For further information on the consumer price index, referred to in paragraph (3)(d), see https://www.bls.gov/cpi .

§ 48-1503. Notice to the attorney general.

  1. Any nonprofit hospital shall be required to provide written notice to the attorney general prior to entering into any nonprofit hospital conversion transaction.
  2. In addition to identifying the parties to the nonprofit hospital conversion transaction and the general terms of the transaction, the notice to the attorney general provided for in this section shall include and contain relevant information related to the review factors set forth in section 48-1506, Idaho Code.
  3. This chapter shall not apply to a nonprofit hospital if the attorney general has given the nonprofit hospital a written waiver of this chapter as to the nonprofit hospital conversion transaction.
History.

I.C.,§ 48-1503, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1504. Attorney general review and written opinion — Time periods — Extension — District court review.

  1. No nonprofit hospital conversion transaction may close or be consummated until the time periods, as provided in this section, have expired.
  2. Within ninety (90) days of receipt of a written notice as required by section 48-1503, Idaho Code, the attorney general shall review the proposed nonprofit hospital conversion transaction and notify the nonprofit hospital in writing of his opinion. The attorney general shall review the nonprofit hospital conversion transaction to determine if it is in the charitable trust interest. In making his determination, the attorney general shall be guided by the factors set forth in section 48-1506, Idaho Code. Upon application by the attorney general, the district court may extend this period for an additional sixty (60) day period, provided the extension is necessary to obtain necessary and relevant information pursuant to section 48-1507(2) or 48-1508(1), Idaho Code.
  3. If the attorney general, in his written opinion, opposes the proposed nonprofit hospital conversion transaction, the parties to the transaction may not close or consummate the transaction for fourteen (14) days after the attorney general’s opinion has been issued to allow the attorney general, in his discretion, to file suit seeking to block the transaction.
  4. If the attorney general files a lawsuit seeking to block the nonprofit hospital conversion transaction, the district court shall review, de novo, the transaction to determine if it is in the charitable trust interest. In making this determination, the district court shall use the factors set forth in section 48-1506, Idaho Code. Neither a positive nor a negative finding with regard to one (1) or more of the factors listed in section 48-1506, Idaho Code, shall necessarily mean that the nonprofit hospital conversion transaction is or is not in the charitable trust interest.
History.

I.C.,§ 48-1504, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1505. Public meetings — Notice of time and place.

  1. Prior to issuing any written opinion pursuant to section 48-1504, Idaho Code, the attorney general may conduct one (1) or more public meetings, one (1) of which, if held, shall be held in the county where the nonprofit hospital’s assets to be transferred are located.
  2. If a party to the intended nonprofit hospital conversion transaction requests the hearing be conducted by a hearing officer outside the attorney general’s office, a hearing officer, mutually agreed upon by the parties to the conversion transaction and the attorney general, shall be selected.
  3. At the public meeting, the attorney general or hearing officer shall hear comments from interested persons desiring to make statements regarding the proposed nonprofit hospital conversion transaction.
  4. The attorney general shall cause timely written notice to be provided regarding the time and place of the meeting through publication in one (1) or more newspapers of general circulation in the affected community, to the county board of supervisors, and if applicable, to the city council of the city where the nonprofit hospital’s assets to be transferred are located.
  5. If a hearing officer is used, the parties to the nonprofit hospital conversion transaction shall pay the costs of the hearing officer.
History.

I.C.,§ 48-1505, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1506. Nonprofit hospital conversion transaction review elements.

In reviewing a proposed nonprofit hospital conversion transaction, the attorney general (and the district court as necessary and applicable), shall consider:

  1. Whether the nonprofit hospital will receive fair market value for its charitable trust assets;
  2. Whether the fair market value of the nonprofit hospital’s assets to be transferred has been affected by the actions of the parties in a manner that improperly causes the fair market value of the assets to decrease;
  3. Whether the proceeds of the proposed nonprofit hospital conversion transaction will be used consistent with the trust under which the assets are held by the nonprofit hospital and whether the proceeds will be controlled as funds independently of the acquiring or related entities;
  4. Whether the governing body of the nonprofit hospital exercised due diligence in deciding to dispose of the nonprofit hospital’s assets, selecting the acquiring entity, and negotiating the terms and conditions of the disposition;
  5. Whether the nonprofit hospital conversion transaction will result in improper private inurement to any person as set forth in section 48-1511, Idaho Code; and
  6. Whether the terms of any management or services contract negotiated in conjunction with the proposed nonprofit hospital conversion transaction are reasonable.
History.

I.C.,§ 48-1506, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 48-1507. Rules — Authority to adopt — Information requests — Consequences of refusal to provide information.

  1. The attorney general may adopt such rules, pursuant to chapter 52, title 67, Idaho Code, as the attorney general deems appropriate or necessary to implement this chapter.
  2. The attorney general may request that the nonprofit hospital giving notice under section 48-1503, Idaho Code, in addition to providing information related to the review factors set forth in section 48-1506, Idaho Code, provide other information which the attorney general reasonably deems necessary and relevant to review the nonprofit hospital conversion transaction.
  3. If the nonprofit hospital declines to provide the information requested by the attorney general in subsection (2) of this section, the attorney general may apply to the court for an order requiring the disclosure of the information, which shall be granted if found to be necessary and relevant.
History.

I.C.,§ 48-1507, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1508. Contracts with agencies and consultants — Reimbursement for costs and expenses of review — Failure to pay.

  1. Within the time periods designated in section 48-1504, Idaho Code, the attorney general may do any of the following to assist in the review of the proposed nonprofit hospital conversion transaction described in section 48-1503, Idaho Code:
    1. Contract with, consult, and receive advice from any agency of the state or the United States on such terms and conditions the attorney general deems appropriate; or
    2. In the attorney general’s sole discretion, contract with such experts or consultants the attorney general deems appropriate to assist the attorney general in reviewing the proposed nonprofit hospital conversion transaction.
  2. Any costs incurred by the attorney general pursuant to this section shall not exceed an amount that is reasonable and necessary to conduct the review of the proposed nonprofit hospital conversion transaction. The attorney general shall be exempt from the provisions of any applicable state laws regarding public bidding procedures for purposes of entering into contracts pursuant to this section.
  3. The attorney general, after reviewing the nonprofit hospital conversion transaction, may submit a claim to the board of examiners for reimbursement of his reasonable costs and expenses incurred in reviewing the transaction. Upon submission of a claim from the attorney general, the board of examiners may authorize the issuance of deficiency warrants for the purpose of reimbursing the attorney general reasonable and actual costs, but not attorney’s fees, associated with actions taken pursuant to this chapter. Deficiency warrants authorized by the board of examiners under this section shall not exceed one hundred thousand dollars ($100,000) for reimbursement of all claims as a result of the attorney general’s review of a transaction under this chapter. Upon authorization of deficiency warrants by the board of examiners in accordance with the provisions of this section, the state controller shall, after notice to the state treasurer, draw deficiency warrants in the authorized amounts against the general account [general fund].
History.

I.C.,§ 48-1508, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

State board of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to correct the name of the referenced fund. See§ 67-1205.

§ 48-1509. Public records.

All documents submitted to the attorney general by any person, including nonprofit hospital entities giving notice under section 48-1503, Idaho Code, in connection with the attorney general’s review of the proposed nonprofit hospital conversion transaction pursuant to this chapter shall be deemed records contained in court files of judicial proceedings, as provided for in section 74-104(2), Idaho Code, and shall only be subject to public disclosure, pursuant to a public document request, in the same manner as set forth in that section.

History.

I.C.,§ 48-1509, as added by 2000, ch. 314, § 1, p. 1053; am. 2015, ch. 141, § 126, p. 379.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Amendments.

The 2015 amendment, by ch. 141, substituted “74-104(2)” for “9-340A(2)”.

§ 48-1510. Penalties — Remedies.

  1. In his discretion, the attorney general may apply to the district court for an order voiding any nonprofit hospital conversion transaction entered into in violation of the notice and disclosure requirements of section 48-1503(1), Idaho Code. Each member of the governing boards and the chief executive officers of the parties to the nonprofit hospital conversion transaction may be subject to a civil penalty of up to ten thousand dollars ($10,000) for knowingly failing to notify the attorney general of the nonprofit hospital conversion transaction, or for violating the provisions of section 48-1511, Idaho Code, as applicable. The amount of any civil penalty shall be determined by the district court in the county in which the nonprofit hospital’s assets to be transferred are located. No such penalty may be imposed under this section merely because the attorney general files suit under section 48-1504, Idaho Code, or because the district court enters an order that the nonprofit hospital conversion transaction at issue is not in the charitable trust interest. The attorney general shall institute proceedings to impose such a penalty.
  2. Nothing in this chapter shall be construed to limit the common law authority of the attorney general regarding charitable trusts and charitable assets in this state. The provisions of this chapter are in addition to, and not a replacement for, any other actions which the attorney general may take under either the common law or statutory law, including rescinding the nonprofit hospital conversion transaction, granting injunctive relief or any combination of these and other remedies available under common law or statutory law.
History.

I.C.,§ 48-1510, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1511. Private benefit.

No person who is an officer, director, board member or other fiduciary of a nonprofit hospital shall receive anything of value, beyond ordinary compensation, that relates to a nonprofit hospital conversion transaction described in this act and is of such a character as to have the appearance of an improper influence on the person with respect to the person’s duties; provided however, that an officer or employee of the nonprofit hospital may accept a job with, perform duties for, and receive ordinary compensation from, the purchasing or converting entity. Any person who violates the provisions of this section shall, in addition to being subject to the provisions of section 48-1510, Idaho Code, forfeit the items of value received in violation of this section.

History.

I.C.,§ 48-1511, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the middle of the first sentence refers to S.L. 2000, Chapter 314, which is compiled as§§ 48-1501 to 48-1512.

§ 48-1512. Application of act.

This act applies to all acquisitions, the consummation of which occurs after the effective date of this act.

History.

I.C.,§ 48-1512, as added by 2000, ch. 314, § 1, p. 1053.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” at the beginning of the section refers to S.L. 2000, Chapter 314, which is compiled as§§ 48-1501 to 48-1512.

The phrase “effective date of this act” refers to the effective date of S.L. 2000, Chapter 314, which was effective July 1, 2000.

Chapter 16 HEALTH-RELATED CASH DISCOUNT CARDS

Sec.

§ 48-1601. Unlawful practices — Exceptions.

It shall be unlawful and a violation of this chapter for any person to sell, market, promote, advertise or otherwise distribute any card or other purchasing mechanism or device, which is not insurance, that purports to offer discounts or access to discounts from health care providers in health-related purchases where:

  1. Such card or other purchasing mechanism or device does not expressly provide in bold and prominent type that the discounts are not insurance;
  2. Such discounts are not specifically authorized by an individual and separate contract with each health care provider listed in conjunction with the card or other purchasing mechanism or device; or
  3. The discounts or access to discounts offered or the range of discounts or access to the range of discounts offered are misleading, deceptive or fraudulent, regardless of the literal wording used.
  4. Nothing in this chapter shall be construed to apply to:
    1. A customer discount or membership card issued by a store or buying club for use at that store or buying club;
    2. A benefit administered by an insurer, a carrier or a managed care organization as defined in sections 41-103, 41-2212 and 41-3903, Idaho Code, respectively.
History.

I.C.,§ 48-1601, as added by 2000, ch. 185, § 1, p. 454.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2000, ch. 185 provided that the act shall be in full force and effect on and after July 1, 2000.

§ 48-1602. Court actions upon violation.

  1. The attorney general of the state of Idaho, any person, firm, private corporation, municipal or other public corporation, or trade association, may maintain an action to enjoin a continuance of any act or acts in violation of this chapter and for the recovery of damages.
  2. Any person subject to liability under this section shall be deemed, as a matter of law, to have purposefully availed himself of the privileges of conducting activities within Idaho, sufficient to subject the person to the personal jurisdiction of the district court hearing an action brought pursuant to this chapter.
  3. An action for violation of this section may be brought:
    1. In the county where the plaintiff resides;
    2. In the county where the plaintiff conducts business; or
    3. In the county where the card or other purchasing mechanism or device was sold, marketed, promoted, advertised or otherwise distributed.
  4. If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this chapter, it shall enjoin the defendant from a continuance thereof. It shall not be necessary, except to recover for actual damages under subsection (5) of this section, that actual damages to the plaintiff be alleged or proved.
  5. In addition to injunctive relief, the plaintiff in the action shall be entitled to recover from the defendant:
    1. One hundred dollars ($100) per card or other purchasing mechanism or device sold, marketed, promoted, advertised or otherwise distributed within the state of Idaho, or ten thousand dollars ($10,000), whichever is greater;
    2. Three (3) times the amount of the actual damages, if any sustained;
    3. Reasonable attorney’s fees;
    4. Costs; and
    5. Any other relief which the court deems proper.
  6. All actions under this section shall be commenced within two (2) years after the date on which the violation of this chapter occurred or within two (2) years after the person bringing the action discovered, or in the exercise of reasonable diligence, should have discovered, the occurrence of the violation of this chapter. The period of limitation provided in this section may be extended for a period of one hundred eighty (180) days if the person bringing the action proves by a preponderance of the evidence that the failure to timely commence the action was caused by the defendant’s engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone commencement of the action.
  7. Any defendant in an action brought under the provisions of this chapter may be required to testify as provided by law. In addition, the books and records of any such defendant may be brought into court and introduced, by reference, into evidence.
  8. The remedies prescribed in this section are cumulative and in addition to any other remedies prescribed by law, and in addition to any other applicable criminal, civil or administrative penalties.
History.

I.C.,§ 48-1602, as added by 2000, ch. 185, § 1, p. 454.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Effective Dates.

Section 2 of S.L. 2000, ch. 185 provided that the act should be in full force and effect on and after July 1, 2000.

§ 48-1603. Designation of agent.

Any person who sells, markets, promotes, advertises or otherwise distributes any card or other purchasing mechanism or device, which is not insurance, that purports to offer discounts from health care providers in health-related purchases in Idaho, shall designate an agent who is a resident of Idaho, for service of process and register such agent with the secretary of state.

History.

I.C.,§ 48-1603, as added by 2000, ch. 185, § 1, p. 454.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Effective Dates.

Section 2 of S.L. 2000, ch. 185 provided that the act should be in full force and effect on and after July 1, 2000.

Chapter 17 BAD FAITH ASSERTIONS OF PATENT INFRINGEMENT

Sec.

§ 48-1701. Legislative findings and intent.

  1. The legislature of the state of Idaho finds that:
    1. Idaho is striving to build an entrepreneurial and knowledge-based economy. Attracting and nurturing information technology (IT) and other knowledge-based companies are important parts of this effort and will be beneficial to Idaho’s future.
    2. Patents are essential to encouraging innovation, especially in the IT and knowledge-based fields. The protections afforded by the federal patent system create an incentive to invest in research and innovation, which spurs economic growth. Patent holders have every right to enforce their patents when they are valid and infringed, to solicit interest from prospective licensees and to initiate patent enforcement litigation as necessary to protect intellectual property.
    3. The legislature does not wish to interfere with the good faith enforcement of patents or good faith patent litigation. The legislature also recognizes that Idaho is preempted from passing any law that conflicts with federal patent law.
    4. Abusive patent litigation, and especially the assertion of bad faith infringement claims, can harm Idaho companies. A business that receives a letter or other communication asserting such claims faces the threat of expensive and protracted litigation and may feel that it has no choice but to settle and to pay a licensing fee, even if the claim is meritless.
    5. Not only do bad faith patent infringement claims impose a significant burden on individual Idaho businesses, they also undermine Idaho’s efforts to attract and nurture IT and other knowledge-based companies. Funds used to avoid the threat of bad faith litigation are no longer available to invest, produce new products, expand or hire new workers, thereby harming Idaho’s economy.
  2. Through this narrowly focused chapter, the legislature seeks to facilitate the efficient and prompt resolution of patent infringement claims, protect Idaho businesses from abusive and bad faith assertions of patent infringement and build Idaho’s economy, while at the same time carefully not interfering with legitimate patent enforcement actions.
History.

I.C.,§ 48-1701, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

For additional information on federal patent law, referred to in paragraph (1)(b), see https://www.uspto.gov/patent .

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1702. Definitions.

As used in this chapter:

  1. “Demand letter” means a letter, e-mail or other communication asserting or claiming that the target has engaged in patent infringement, or that the actions of the target would benefit from the grant of a license to any patent, or any similar assertion.
  2. “Idaho person” means a person as defined in section 48-602, Idaho Code.
  3. “Target” means an Idaho person:
    1. Who has received a demand letter or against whom an assertion or allegation of patent infringement has been made;
    2. Who has been threatened with litigation or against whom a lawsuit has been filed alleging patent infringement; or
    3. Whose customers have received a demand letter asserting that the person’s product, service or technology has infringed a patent.
History.

I.C.,§ 48-1702, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1703. Bad faith assertions of patent infringement.

  1. It is unlawful for a person to make a bad faith assertion of patent infringement in a demand letter, a complaint or any other communication.
  2. A court may consider the following factors as evidence that a person has made a bad faith assertion of patent infringement:
    1. The person sends a demand letter to a target without first conducting an analysis comparing the claims in the patent to the target’s products, services or technology.
    2. The demand letter does not contain the following information:
      1. The patent number;
      2. The name and address of the patent owner or owners and assignee or assignees, if any; and
      3. The factual allegations concerning the specific areas in which the target’s products, services and technology infringe the patent or are covered by the claims in the patent.
    3. The demand letter does not identify specific areas in which the products, services and technology are covered by the claims in the patent.
    4. The demand letter demands payment of a license fee or response within an unreasonably short period of time.
    5. The person offers to license the patent for an amount that is not reasonably based on the value of a license to the patent.
    6. The person asserting a claim or allegation of patent infringement acts in subjective bad faith, or a reasonable actor in the person’s position would know or reasonably should know that such assertion is meritless.
    7. The claim or assertion of patent infringement is deceptive.
    8. The person or its subsidiaries or affiliates have previously filed or threatened to file one (1) or more lawsuits alleging patent infringement based on the same or similar claim, the person attempted to enforce the claim of patent infringement in litigation and a court found the claim to be meritless.
    9. Any other factor the court finds relevant.
  3. A court may consider the following factors as evidence that a person has not made a bad faith assertion of patent infringement:
    1. The person engages in a good faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy.
    2. The person makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent.
    3. The person has:
      1. Demonstrated good faith in previous efforts to enforce the patent, or a substantially similar patent; or
      2. Successfully enforced the patent, or a substantially similar patent, through litigation.
    4. Any other factor the court finds relevant.
  4. Any violation of the provisions of this chapter is an unlawful, unfair and deceptive act or practice in trade or commerce for the purpose of applying the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
History.

I.C.,§ 48-1703, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1704. Personal jurisdiction.

Any person outside this state sending a demand letter to an Idaho person shall be deemed to be transacting business within this state within the meaning of section 5-514(a), Idaho Code, and shall thereby be subject to the jurisdiction of the courts of this state.

History.

I.C.,§ 48-1704, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1705. Authority of the attorney general and district courts.

The attorney general and the district court shall have the same authority in enforcing and carrying out the provisions of this chapter as is granted the attorney general and district courts under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.

History.

I.C.,§ 48-1705, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1706. Private cause of action, remedies and damages — Limitation of action.

  1. A target of conduct involving assertions of patent infringement, or a person aggrieved by a violation of this chapter or by a violation of rules promulgated under chapter 6, title 48, Idaho Code, may bring an action in district court. A court may award the following remedies to a plaintiff who prevails in an action brought pursuant to this subsection:
    1. Equitable relief;
    2. Damages;
    3. Costs and fees, including reasonable attorney’s fees; and
    4. Exemplary damages in an amount equal to fifty thousand dollars ($50,000) or three (3) times the total of damages, costs and fees, whichever is greater.
  2. The remedies provided for in this chapter are not exclusive and shall be in addition to any other procedures or remedies for any violation or conduct provided for in any other statute.
  3. No private action may be brought under the provisions of this chapter more than three (3) years after the cause of action accrues. A cause of action shall be deemed to have accrued when the party bringing an action under the provisions of this chapter knows, or in the exercise of reasonable care should have known, about the violation of the provisions of this chapter. Each bad faith assertion of patent infringement constitutes a separate violation under this chapter.
History.

I.C.,§ 48-1706, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1707. Bond.

Upon motion by a target and a finding by the court that a target has established a reasonable likelihood that a person has made a bad faith assertion of patent infringement in violation of this chapter, the court shall require the person to post a bond in an amount equal to a good faith estimate of the target’s costs to litigate the claim and amounts reasonably likely to be recovered under this chapter, conditioned upon payment of any amounts finally determined to be due to the target. A hearing shall be held if either party so requests. The court may waive the bond requirement if it finds the person has available assets equal to the amount of the proposed bond or for other good cause shown.

History.

I.C.,§ 48-1707, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

§ 48-1708. Exemptions.

A demand letter or assertion of patent infringement that includes a claim for relief arising under 35 U.S.C. section 271(e) (2) shall not be subject to the provisions of this chapter.

History.

I.C.,§ 48-1708, as added by 2014, ch. 277, § 1, p. 699.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 2014, ch. 277 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Chapter 18 RESIDENTIAL SOLAR ENERGY SYSTEM DISCLOSURE ACT

Sec.

§ 48-1801. Short title.

This chapter shall be known and may be cited as the “Residential Solar Energy System Disclosure Act.”

History.

I.C.,§ 48-1801, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1802. Definitions.

As used in this chapter:

  1. “Consumer” means a person who, for primarily personal, family, or household purposes:
    1. Purchases a residential solar energy system under a solar agreement; or
    2. Leases a residential solar energy system under a system lease agreement.
  2. “Residential solar energy system” means a solar energy system that:
    1. Is installed on or in real property in the state of Idaho;
    2. Generates electricity primarily for on-site consumption for primarily personal, family, or household purposes; and
    3. Has an electricity delivery capacity that exceeds one (1) kilowatt.
  3. “Solar agreement” means a system purchase agreement or a system lease agreement.
  4. “Solar energy system” means a system or configuration of energy devices that collects and uses solar energy to generate electricity to be used by a consumer.
  5. “Solar retailer” means a person who:
    1. Sells or proposes to sell a residential solar energy system to a consumer under a system purchase agreement; or
    2. Owns the residential solar energy system that is the subject of a system lease agreement or proposed system lease agreement.
  6. “System lease agreement” means an agreement:
    1. Under which a consumer leases a residential solar energy system from a solar retailer; and
    2. That provides for the consumer to make payments over a term for the lease of the residential solar energy system.
  7. “System purchase agreement” means an agreement under which a consumer purchases a residential solar energy system, or the energy created from a residential solar energy system, from a solar retailer either outright or through installment payments.
History.

I.C.,§ 48-1802, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1803. Applicability.

  1. The provisions of this chapter shall apply to any solar agreement entered into on or after October 1, 2019, between a solar retailer and a consumer including, but not limited to, a solar agreement that accompanies the transfer of ownership or lease of real property.
  2. The provisions of this chapter shall not apply to:
    1. The transfer or rental of real property on which a residential solar energy system is, or is expected to be, located if the presence of the residential solar energy system is incidental to the transfer or rental;
    2. A lender, governmental entity, or other third party that enters into an agreement with a consumer to finance a residential solar energy system but is not a party to a system purchase agreement or lease agreement; or
    3. A sale or lease of, or the purchase of electricity from, a solar energy system that is not a residential solar energy system.
History.

I.C.,§ 48-1803, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1804. Disclosure statement required.

  1. Before entering a solar agreement, a solar retailer shall provide to a potential consumer a separate, written disclosure statement as provided in this section and, as applicable, the information required in sections 48-1805, 48-1806, and 48-1807, Idaho Code.
    1. The requirements of this subsection may be satisfied by the electronic delivery of a disclosure statement to the potential consumer.
    2. An electronic document delivered pursuant to paragraph (a) of this subsection shall satisfy the font size standard under subsection (2)(a) of this section if the required disclosures are displayed in a clear and conspicuous manner.
  2. A disclosure statement under subsection (1) of this section shall:
    1. Be in at least twelve (12) point font;
    2. Contain:
      1. The name, address, and telephone number or e-mail address of the potential consumer;
      2. The name, address, telephone number, and e-mail address of the solar retailer;
      3. The name, address, telephone number, e-mail address, and state contractor registration number of the person who is expected to install the system that is the subject of the solar agreement; and
      4. If the solar retailer is the person who is expected to provide operations or maintenance support to the potential consumer or who introduced that person to the potential consumer, the name, address, telephone number, e-mail address, and any applicable state contractor registration number of the operations or maintenance support person; and
    3. Any applicable information and disclosures as required in sections 48-1805, 48-1806, and 48-1807, Idaho Code.
History.

I.C.,§ 48-1804, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1805. Contents of disclosure statement for any solar agreement.

If a solar retailer is proposing to enter any solar agreement with a potential consumer, the disclosure statement required in section 48-1804, Idaho Code, shall also include:

  1. If operations or maintenance services are not included as part of the solar agreement, a statement indicating those services are not included in the agreement;
  2. Any written estimate of the savings the potential consumer is projected to realize from the system, including:
    1. At the discretion of the solar retailer, the estimated projected savings over the life of the solar agreement and the estimated projected savings over any longer period not to exceed the anticipated useful life of the system;
    2. Any material assumptions used to calculate estimated projected savings and the source of those assumptions including, but not limited to:
      1. If an annual electricity rate increase is assumed, the rate of the increase and the solar retailer’s basis for the assumption of the rate increase;
      2. The potential consumer’s eligibility for or receipt of tax credits or other governmental or utility incentives;
      3. System production data, including production degradation;
      4. Reference to any utility tariff and the possibility of additional costs for interconnection under any net metering or similar program;
      5. Electrical usage and the system’s designed offset of the electrical usage;
      6. Historical utility costs paid by the potential consumer; and
      7. The costs associated with replacing equipment making up any part of the system or, if those costs are not assumed, a statement indicating that those costs are not assumed; and
    3. Two (2) separate statements in capital letters in close proximity to any written estimate of projected savings, with substantially the following form and content:
      1. “THIS IS AN ESTIMATE. UTILITY RATES MAY GO UP OR DOWN AND ACTUAL SAVINGS, IF ANY, MAY VARY. HISTORICAL DATA IS NOT NECESSARILY REPRESENTATIVE OF FUTURE RESULTS. FOR FURTHER INFORMATION REGARDING RATES, CONTACT YOUR LOCAL UTILITY OR THE IDAHO PUBLIC UTILITIES COMMISSION.”; and
      2. “TAX AND OTHER FEDERAL, STATE, AND LOCAL INCENTIVES VARY AS TO REFUNDABILITY AND ARE SUBJECT TO CHANGE OR TERMINATION BY LEGISLATIVE OR REGULATORY ACTION, WHICH MAY IMPACT SAVINGS ESTIMATES. CONSULT A TAX PROFESSIONAL FOR MORE INFORMATION.”;
  3. A notice in capital letters with substantially the following form and content: “LEGISLATIVE OR REGULATORY ACTION MAY AFFECT OR ELIMINATE YOUR ABILITY TO SELL OR GET CREDIT FOR ANY EXCESS POWER GENERATED BY THE SYSTEM AND MAY AFFECT THE PRICE OR VALUE OF THAT POWER.”;
  4. A notice describing any right a consumer has under applicable law to cancel or rescind a solar agreement;
  5. A statement describing the system and indicating the system design assumptions, including the make and model of the solar panels and inverters, system size, positioning of the panels on the consumer’s property, estimated first-year energy production, and estimated annual energy production degradation, including the overall percentage degradation over the term of the solar agreement or, at the solar retailer’s option, over the estimated useful life of the system;
  6. A description of any warranty, representation, or guarantee of energy production of the system;
  7. The approximate start and completion dates for the installation of the system;
  8. A statement indicating whether any warranty or maintenance obligations related to the system may be transferred by the solar retailer to a third party and, if so, a statement with substantially the following form and content: “The maintenance and repair obligations under your contract may be assigned or transferred without your consent to a third party who will be bound to all the terms of the contract. If a transfer occurs, you will be notified of any change to the address, e-mail address, or phone number to use for questions or payments or to request system maintenance or repair.”;
  9. If the solar retailer will not obtain approval to connect the system to the consumer’s utility, a statement to that effect and a description of what the consumer must do to interconnect the system to the utility;
  10. A description of any roof penetration warranty or other warranty that the solar retailer provides the consumer or a statement, in bold capital letters, that the solar retailer does not provide any warranty;
  11. A statement indicating whether the solar retailer will make a fixture filing or other notice in the state or local records related to the system and any fees or other costs associated with the filing that may be charged to the consumer;
  12. A statement at the outset of the agreement in capital letters with substantially the following form and content: “NO EMPLOYEE OR REPRESENTATIVE OF [name of solar retailer] IS AUTHORIZED TO MAKE ANY PROMISE TO YOU THAT IS NOT CONTAINED IN THIS DISCLOSURE STATEMENT CONCERNING COST SAVINGS, TAX BENEFITS, OR GOVERNMENT OR UTILITY INCENTIVES. YOU SHOULD NOT RELY UPON ANY PROMISE OR ESTIMATE THAT IS NOT INCLUDED IN THIS DISCLOSURE STATEMENT.”;
  13. A statement in capital letters at the outset of the agreement with substantially the following form and content: “[name of solar retailer] IS NOT AFFILIATED WITH ANY UTILITY COMPANY OR GOVERNMENT AGENCY. NO EMPLOYEE OR REPRESENTATIVE OF [name of solar retailer] IS AUTHORIZED TO CLAIM AFFILIATION WITH A UTILITY COMPANY OR GOVERNMENT AGENCY.”; and
  14. Any additional information, statement, or disclosure the solar retailer considers appropriate, as long as the additional information, statement, or disclosure does not have the purpose or effect of obscuring the disclosures required under this chapter.
History.

I.C.,§ 48-1805, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1806. Contents of disclosure statement for system purchase agreement.

If a solar retailer is proposing to enter a system purchase agreement with a potential consumer, the disclosure statement required in section 48-1804, Idaho Code, shall also include:

  1. A statement with substantially the following form and content: “You are entering an agreement to purchase an energy generation system. You will own the system installed on your property. You may be entitled to federal tax credits because of the purchase. You should consult your tax advisor.”;
  2. The price quoted to the potential consumer for a non-financed purchase of the system;
  3. If the system purchase agreement is not an outright purchase and requires installment payments:
    1. The interest rate charged and a schedule of required and anticipated payments from the consumer to the solar retailer and any third parties over the term of the system purchase agreement, including application fees, up-front charges, down payment, scheduled payments under the system purchase agreement, payments at the end of the term of the system purchase agreement, payments for any operations or maintenance contract offered by or through the solar retailer in connection with the system purchase agreement, payments for replacement of system components likely to require replacement before the end of the term of the system purchase agreement, and any prepayment penalties; and
    2. A figure that reflects the total amount to be paid by the consumer pursuant to the charges set forth in paragraph (a) of this subsection;
  4. A statement indicating the charges associated with insuring the system against loss or a statement that loss insurance is not included within the schedule of payments under the system purchase agreement;
  5. A statement, if applicable, with substantially the following form and content: “You are responsible for obtaining insurance coverage for any loss or damage to the system. You should consult an insurance professional to understand how to protect against the risk of loss or damage to the system. You should also consult your home insurer about the potential impact of installing a system.”; and
  6. Information disclosing whether the system purchase agreement is transferrable to a purchaser of the home or real property where the system is located and, if so, any conditions for a transfer.
History.

I.C.,§ 48-1806, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1807. Contents of disclosure statement for system lease agreement.

If a solar retailer is proposing to enter a system lease agreement with a potential consumer, the disclosure statement required in section 48-1804, Idaho Code, shall also include:

  1. A statement with substantially the following form and content: “You are entering an agreement to lease an energy generation system. You will lease (not own) the system installed on your property. You will not be entitled to any federal tax credit associated with the lease.”;
  2. Information about whether the system lease agreement may be transferred to a purchaser of the home or real property where the system is located and, if so, any conditions for a transfer;
  3. If the solar retailer will not obtain insurance against damage or loss to the system, a statement to that effect and a description of the consequences to the consumer if there is damage or loss to the system; and
  4. Information about what will happen to the system at the end of the term of the system lease agreement.
History.

I.C.,§ 48-1807, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1808. Good faith estimate allowed.

A solar retailer that does not, at the time of providing a disclosure statement required in section 48-1804(1), Idaho Code, have information required under sections 48-1805(2)(a) and (b) and 48-1806(2),(3), and (4), Idaho Code, may make a good faith estimate of that information in the disclosure statement if the solar retailer clearly indicates that the information is an estimate and provides the basis for the estimate.

History.

I.C.,§ 48-1808, as added by 2019, ch. 267, § 1, p. 781.

§ 48-1809. Authority of the attorney general and district court.

  1. The attorney general and the district court shall have the same authority in enforcing and carrying out the provisions of this chapter as is granted the attorney general and district court under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
  2. All penalties, costs, and fees received or recovered by the attorney general shall be remitted to the consumer protection fund and expended pursuant to section 48-606(5), Idaho Code.
  3. Nothing in this chapter shall be construed to affect:
    1. A remedy a consumer has independent of this chapter; or
    2. The attorney general’s ability or authority to enforce any other law or regulation.
History.

I.C.,§ 48-1809, as added by 2019, ch. 267, § 1, p. 781.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Chapter 19 IDAHO CHARITABLE ASSETS PROTECTION ACT

Sec.

§ 48-1901. Short title.

This chapter shall be known and may be cited as the “Idaho Charitable Assets Protection Act.”

History.

I.C.,§ 48-1901, as added by 2020, ch. 321, § 1, p. 921.

§ 48-1902. Legislative findings and intent.

  1. The state of Idaho is home to thousands of charitable organizations that, collectively, hold billions of dollars in charitable assets. Charitable organizations have a legal duty to use their charitable assets according to the charitable purposes designated in their governing documents. The legislature is aware, however, that misuse or misappropriation of charitable assets occurs to the harm of the charitable purposes for which they were donated and the communities that were intended to be benefitted by the charitable donation.
  2. The attorney general, as the state of Idaho’s chief legal officer, has a legal duty to ensure that charitable assets are used for their intended purposes.
  3. The current law governing the attorney general’s authority over charitable organizations holding charitable assets does not adequately define the attorney general’s duties and enforcement authorities. Further, Idaho law has not effectively defined the attorney general’s authority to address a person’s unlawful misuse or misappropriation of charitable assets.
  4. Therefore, through this chapter, it is the legislature’s intent to:
    1. Define the attorney general’s duties to protect charitable assets from misuse or misappropriation and to provide the attorney general with the necessary authority and enforcement tools to protect charitable assets; and
    2. Provide a procedure for notifying the attorney general before certain charitable organizations dissolve, convert to a noncharitable organization, terminate, or otherwise dispose of their charitable assets.
  5. The provisions of this chapter are remedial and shall be construed and applied liberally to accomplish the purposes provided for in this section and to protect Idaho charitable assets.
History.

I.C.,§ 48-1902, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1903. Definitions.

As used in this chapter:

  1. “Accountable person” means a director, officer, executive, manager, trustee, agent, or employee of a charitable organization.
  2. “Attorney general” means the attorney general of the state of Idaho or the attorney general’s designee.
  3. “Charitable asset” means any interest in real or personal property and any other article, commodity, or thing of value that is impressed with a charitable purpose but does not include private assets held in a split-interest trust, as described in section 4947(a)(2) of the Internal Revenue Code, as referenced in section 63-3004, Idaho Code.
  4. “Charitable organization” means a person who holds charitable assets regardless of the legal form.
  5. “Charitable purpose” means the relief of poverty, the advancement of knowledge, education, or religion, or the promotion of health, the environment, civic or patriotic matters, or any other purpose, the achievement of which is beneficial to the community.
  6. “Person” has the same meaning as that term is defined in section 15-1-201(34), Idaho Code.
History.

I.C.,§ 48-1903, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Federal References.

Section 4947(a)(2) of the internal revenue code, referred to in subsection (3), is codified as 26 USCS § 4947(a)(2).

§ 48-1904. Courts not impaired — Conflict of laws.

Nothing in this chapter shall impair the rights and powers of the courts of this state with respect to any charitable organization.

History.

I.C.,§ 48-1904, as added by 2020, ch. 321, § 1, p. 921.

§ 48-1905. Persons excluded.

The provisions of this chapter shall not apply to:

  1. A state or federally chartered bank, savings bank, savings and loan association, thrift institution, trust company, or credit union; or
  2. An individual who is acting within the scope of his position and duties as a director, officer, executive, manager, or employee of a person described in subsection (1) of this section.
History.

I.C.,§ 48-1905, as added by 2020, ch. 321, § 1, p. 921.

§ 48-1906. Unlawful acts.

  1. It is unlawful for an accountable person or charitable organization to knowingly use, or allow to be used, the charitable organization’s charitable assets in a manner that is inconsistent with:
    1. Law applicable to the charitable asset;
    2. The restrictions contained in a gift instrument regarding the charitable assets; provided, however, that nothing in this section shall prevent a person from seeking a release or modifying the charitable purposes or restrictions contained in a gift instrument, pursuant to section 33-5006, Idaho Code, or other applicable Idaho law; or
    3. The charitable purpose of the charitable organization that holds the charitable asset.
  2. An accountable person is not liable under this section if the accountable person:
    1. Discharged his duties as an accountable person in compliance with the standards of conduct set forth in sections 30-30-618 and 30-30-623, Idaho Code, irrespective of whether the accountable person would otherwise be subject to the provisions of such sections;
    2. Acted in compliance with the applicable trust instrument and that trust instrument complies with Idaho law;
    3. Qualifies for immunity under section 6-1605, Idaho Code; or
    4. Acted in compliance with a court order regarding a matter for which the attorney general received timely notice as provided by applicable law, thereby providing the attorney general time to file any objection and be heard by the court regarding the matter.
History.

I.C.,§ 48-1906, as added by 2020, ch. 321, § 1, p. 921.

§ 48-1907. Sale or transfer of charitable assets.

  1. A charitable organization that holds, or within the preceding twelve (12) months received or at any time held, charitable assets with a fair market value in the aggregate exceeding ten thousand dollars ($10,000) shall provide written notice to the attorney general of the charitable organization’s intent to dissolve, convert to a noncharitable organization, terminate, or dispose of all of its charitable assets. In addition, a charitable organization that holds, or within the preceding twelve (12) months received or at any time held, charitable assets with a fair market value in the aggregate exceeding ten thousand dollars ($10,000) shall provide written notice to the attorney general of the charitable organization’s intent to dispose of substantially all of its charitable assets if such charitable organization has no reasonable expectation it will hold charitable assets with a fair market value in the aggregate exceeding ten thousand dollars ($10,000) in the next twenty-four (24) months.
  2. This section shall not apply to a charitable organization that is subject to the provisions of:
    1. Chapter 15, title 48, Idaho Code, where notice is timely provided to the attorney general, as provided therein; or
    2. Section 68-1204, Idaho Code, where notice is timely provided to the attorney general, as provided therein.
  3. Written notice to the attorney general under this section must include, at a minimum, the following:
    1. Legal names and mailing addresses of the directors and officers of the charitable organization;
    2. A description of the charitable assets and the charitable purpose of the assets; and
    3. A copy or summary of the plan of dissolution, conversion to a noncharitable organization, or termination and disposal of the charitable organization’s charitable assets.
  4. Subject to subsection (8) of this section, no charitable assets shall be disposed of, transferred, or conveyed by a charitable organization subject to this section until at least thirty (30) days after it has given notice required by this section to the attorney general or until the attorney general has consented in writing to the actions set forth in the charitable organization’s written notice or indicated in writing that he will take no action with respect to the proposed dissolution, conversion, or termination and disposal of the charitable organization’s charitable assets, whichever is earlier.
  5. Failure to comply with the notice requirements of this section subjects the charitable organization’s accountable persons to liability as provided by this chapter.
  6. A charitable organization that has provided notice under subsections (1) and (3) of this section and has not received a written response from the attorney general after thirty (30) days of giving such notice may proceed with the proposed dissolution, conversion to a noncharitable organization, or termination and disposal of charitable assets and be deemed in compliance with subsections (1) and (3) of this section. (7) Within ninety (90) days of completion of the proposed dissolution, conversion to a noncharitable organization, or termination and disposal of all or substantially all of its charitable assets, the charitable organization’s board shall deliver to the attorney general a list of who received the assets. The list shall include the address of each person who received the assets and indicate what assets each received.

(8) If the attorney general opposes, in writing, a proposed dissolution, conversion to a noncharitable organization, or termination and disposal of all or substantially all of a charitable organization’s charitable assets, as set forth in the charitable organization’s notice under subsections (1) and (3) of this section, the charitable organization may not proceed forward with the actions proposed in its written notice for at least fourteen (14) days after the attorney general’s written response has been issued to allow the attorney general, in his discretion, to file suit seeking to block the charitable organization’s proposed dissolution, conversion to a noncharitable organization, or termination and disposal of its charitable assets, or otherwise to resolve the matter with the affected parties pursuant to section 48-1909, Idaho Code.

(9) If the attorney general files a lawsuit seeking to block a charitable organization’s proposed dissolution, conversion to a noncharitable organization, or termination and disposal of charitable trust assets, the district court shall review, de novo, the charitable organization’s proposal to determine if it is in compliance with charitable trust law. If the attorney general does not file a lawsuit within the fourteen (14) days provided in this section, the charitable organization may proceed with the proposed dissolution, conversion to a noncharitable organization, or termination and disposal of charitable assets and be deemed in compliance with subsections (1) and (3) of this section.

History.

I.C.,§ 48-1907, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1908. Investigatory authority of attorney general.

Whenever the attorney general has reason to believe that an accountable person or charitable organization has violated or is violating the provisions of section 48-1906, 48-1907, or 48-1909, Idaho Code, the attorney general may:

  1. Serve investigative demands using the same procedures and in the same manner as described in section 48-611, Idaho Code;
  2. Issue subpoenas and conduct hearings using the same procedures and in the same manner as described in section 48-612, Idaho Code;
  3. Apply to the district court for compliance orders using the same procedures and in the same manner as described in section 48-614, Idaho Code; and
  4. Retain certified fraud examiners, accountants, appraisers, and other experts to assist the attorney general with the attorney general’s investigation.
History.

I.C.,§ 48-1908, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1909. Voluntary compliance — Consent judgment — District court approval.

  1. In lieu of initiating or continuing an investigation or action or proceeding under this chapter, the attorney general may accept an assurance of voluntary compliance or consent judgment from a person who the attorney general has reason to believe violated or is violating the provisions of section 48-1906 or 48-1907, Idaho Code.
  2. Such assurance of voluntary compliance or consent decree shall comply with the provisions of section 48-610, Idaho Code, for assurances of voluntary compliance and section 48-606(4), Idaho Code, for consent judgments and have the same effect as set forth in those provisions with the addition that such assurances of voluntary compliance and consent judgments may also include provisions that require the person signing the document to report to the attorney general concerning the charitable assets or charitable organization or to perform specific acts relating to the charitable organization.
  3. Matters closed pursuant to this section may at any time be reopened by the attorney general for further proceedings in the public interest pursuant to the procedures set forth in section 48-1910, Idaho Code.
History.

I.C.,§ 48-1909, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1910. Proceedings by attorney general.

  1. Whenever the attorney general has reason to believe that a person violated or is violating the provisions of section 48-1906, Idaho Code, the attorney general, acting in the public interest, may bring an action in the name of the state against such person:
    1. To enjoin any action that constitutes a violation of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction, upon the giving of appropriate notice to the alleged violator as provided in the Idaho rules of civil procedure;
    2. To obtain appointment of a master, receiver, or escrow agent to gather, account for, and oversee the charitable assets of the alleged violator and prevent further the dissipation of such assets;
    3. To remove the alleged violator from his position as an accountable person of the charitable organization;
    4. To terminate a charitable organization and liquidate its charitable assets in accordance with its governing instrument or applicable law;
    5. To recover from the alleged violator damages or restitution of any charitable assets misappropriated, lost, or diverted in violation of section 48-1906, Idaho Code;
    6. To recover from the alleged violator civil penalties of up to fifty thousand dollars ($50,000), as determined by the district court;
    7. To obtain specific performance from the alleged violator;
    8. To recover from the alleged violator the attorney general’s reasonable expenses, investigative costs, and attorney’s fees; and
    9. To obtain other appropriate relief.
  2. Whenever the attorney general has reason to believe that a charitable organization violated or is violating the provisions of section 48-1907, Idaho Code, the attorney general, acting in the public interest, may bring an action in the name of the state against such organization and any agents of the organization:
    1. To enjoin any action dissolving the charitable organization, or the dissolving, converting to a noncharitable organization, terminating, or disposing of all or substantially all of the charitable organization’s charitable assets by issuance of a temporary restraining order or preliminary or permanent injunction, upon the giving of appropriate notice to the alleged violator as provided in the Idaho rules of civil procedure;
    2. To obtain appointment of a master, receiver, or escrow agent to gather, account for, and oversee charitable assets whenever it shall appear that all or substantially all of the charitable organization’s charitable assets may be dissolved, converted, terminated, or disposed of during the course of the proceedings;
    3. To terminate a charitable organization and liquidate its charitable assets in accordance with its governing instrument or applicable law;
    4. In cases where the charitable organization’s accountable person or persons knew of and intended to violate the notice provisions of section 48-1907, Idaho Code, to recover from the charitable organization’s accountable persons civil penalties of up to five thousand dollars ($5,000), as determined by the district court; and (e) To obtain other appropriate relief.
  3. The action may be brought in the district court of the county in which the alleged violator resides or, with consent of the parties, may be brought in the district court of Ada county. The action may be brought in any district court in this state if the alleged violator resides outside of the state.
History.

I.C.,§ 48-1910, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1911. Service of notice.

Service of any notice, demand, or subpoena under this chapter shall be made pursuant to section 48-613, Idaho Code.

History.

I.C.,§ 48-1911, as added by 2020, ch. 321, § 1, p. 921.

§ 48-1912. Violation of injunction, consent judgment, or order — Civil penalty.

Any person who violates the terms of a consent judgment entered pursuant to section 48-1909, Idaho Code, or an injunction issued or an order or judgment entered pursuant to section 48-1910, Idaho Code, shall forfeit and pay to the state a civil penalty of no more than ten thousand dollars ($10,000) per violation, the amount of the penalty to be determined by the district court issuing such order, consent judgment, judgment, or injunction. For the purposes of this section, the district court issuing such order, consent judgment, judgment, or injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the attorney general acting in the name of the state may petition for recovery of civil penalties.

History.

I.C.,§ 48-1912, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1913. Penalties and fees recovered — Disposition.

Any civil penalties, costs, or attorney’s fees sued for and recovered by the attorney general under this chapter shall be remitted to the consumer protection fund created in section 48-606, Idaho Code, and shall be used for the furtherance of the attorney general’s duties and activities under the provisions of this chapter, pursuant to legislative appropriation.

History.

I.C.,§ 48-1913, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 48-1914. Charitable assets recovered — Cy Pres — Restitution recovered.

  1. Any charitable assets sued for and recovered by the attorney general under this chapter shall be conveyed:
    1. To the injured charitable organization to restore its misappropriated, lost, or diverted charitable assets; or
    2. To any charitable organization with a similar charitable purpose as that of the charitable organization from which the charitable assets were recovered, pursuant to a court-approved cy pres distribution.
  2. Any restitution sued for and recovered by the attorney general under this chapter shall be deposited and held in the state treasury until such time as the attorney general directs that payment be made to a person to reimburse for any actual damages he incurred as a direct result of a violation of this chapter.
History.

I.C.,§ 48-1914, as added by 2020, ch. 321, § 1, p. 921.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.