1 | The State Administration Council recommends the following: |
2 |
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3 | Council/Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to class action lawsuits; creating s. |
7 | 774.01, F.S.; providing requirements for capacity to file |
8 | a class action; limiting actions to Florida residents; |
9 | providing exceptions; providing requirements for monetary |
10 | relief; eliminating private class action recovery of |
11 | statutory penalties and other forms of monetary relief |
12 | other than actual damages; providing monetary relief; |
13 | providing for availability of nonmonetary relief; creating |
14 | s. 774.02, F.S.; requiring a specified demand to cure |
15 | notice prior to filing a class action; providing for a |
16 | cure period; providing for inspection of goods or evidence |
17 | relevant to a claim; requiring that a plaintiff plead and |
18 | prove specified elements relating to the cure period; |
19 | providing specified defenses to a cause of action; |
20 | providing an effective date. |
21 |
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22 | Be It Enacted by the Legislature of the State of Florida: |
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24 | Section 1. Section 774.01, Florida Statutes, is created to |
25 | read: |
26 | 774.01 Capacity to sue.-- |
27 | (1)(a) In any action asserting the right to class action |
28 | status, the claimant class with capacity to sue shall be limited |
29 | to residents of this state at the time of the alleged |
30 | misconduct, except as provided in paragraph (b). |
31 | (b) Prior to issuance of the certification order, the |
32 | court may expand a class to include any nonresident whose claim |
33 | is recognized within the claimant's state of residence and is |
34 | not time barred, but whose rights cannot be asserted because the |
35 | claimant's state of residence lacks personal jurisdiction over |
36 | the defendant or defendants. In addition, the claimant class may |
37 | include nonresidents if the conduct giving rise to the claim |
38 | occurred in this state. |
39 | (2) Notwithstanding any law to the contrary, in order to |
40 | maintain a class action seeking monetary relief, the class must |
41 | allege and prove actual damages. In any such class action, the |
42 | monetary recovery shall be limited to the amount of actual |
43 | damages. Nothing in this section shall be construed to limit or |
44 | restrict the ability of the Attorney General to bring a class |
45 | action for the recovery of statutory penalties, if otherwise |
46 | authorized by law. However, class action claimants may seek to |
47 | obtain, if appropriate, nonmonetary relief, including injunctive |
48 | relief and orders or declaratory relief and orders or judgments |
49 | enjoining wrongful conduct, regardless of whether the class |
50 | action claimants can prove any actual monetary damages. Nothing |
51 | in this section or in s. 774.02 shall be construed to in any way |
52 | limit or restrict the availability of such nonmonetary relief. |
53 | Section 2. Section 774.02, Florida Statutes, is created to |
54 | read: |
55 | 774.02 Demand to cure notice; opportunity to cure.-- |
56 | (1) As a prerequisite to filing a lawsuit seeking class |
57 | action status, a complainant shall provide the person alleged to |
58 | have committed the alleged misconduct with a demand to cure |
59 | notice advising the person of the specific complaint in |
60 | reasonable detail and: |
61 | (a) If the complainant will seek damages, the amount of |
62 | the loss suffered by the complainant as a result of the alleged |
63 | misconduct. |
64 | (b) If the complainant will seek any nonmonetary relief, |
65 | the remedy the complainant is seeking. |
66 |
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67 | The required demand to cure notice must be provided in writing |
68 | and provided at least 60 days prior to filing suit. |
69 | (2) The complainant submitting the demand to cure notice |
70 | must state at the time of giving notice that the complainant |
71 | seeks to act on behalf of a class. No class action shall be |
72 | filed unless the person alleged to have committed the misconduct |
73 | is given the required demand to cure notice. |
74 | (3) During the 60-day period, the person provided with a |
75 | demand to cure notice may request in writing that the |
76 | complainant permit inspection of the goods or other evidence |
77 | relevant to the claim in a reasonable manner and at a reasonable |
78 | time and place. The complainant must grant any reasonable |
79 | request to inspect in order to satisfy the obligation to permit |
80 | a reasonable opportunity to cure. |
81 | (4) Any settlement by a complainant purporting to affect |
82 | the rights of any member of a putative class shall be approved |
83 | by a court of competent jurisdiction pursuant to applicable |
84 | federal or state rules of civil procedure. |
85 | (5) In addition to any requirements of the applicable |
86 | rules of civil procedure and the underlying action, when suit is |
87 | filed the plaintiff must plead and prove the following elements: |
88 | (a) That the plaintiff provided the defendant with the |
89 | required demand to cure notice. |
90 | (b) That the defendant failed to cure within the time |
91 | allowed. |
92 | (6) A defendant shall have an absolute defense in an |
93 | action seeking class action status if: |
94 | (a) The complainant did not provide the defendant with a |
95 | demand to cure notice; |
96 | (b) The complainant denied the defendant a reasonable |
97 | opportunity to inspect; or |
98 | (c) The defendant tendered to the complainant the damages |
99 | sought or the remedy proposed. |
100 | Section 3. This act shall take effect July 1, 2005. |