| 1 | A bill to be entitled |
| 2 | An act relating to deceptive and unfair trade practices; |
| 3 | creating s. 501.2115, F.S.; requiring a demand letter as a |
| 4 | condition precedent to filing specified actions for |
| 5 | deceptive and unfair trade practices; providing |
| 6 | requirements for such demand letters; providing for |
| 7 | delivery of such letters; providing that if specified |
| 8 | payment of damages and premium is made within a specified |
| 9 | period then no action may be brought against the alleged |
| 10 | violator and the alleged violator shall not be obligated |
| 11 | to pay any attorney's fees to the claimant; providing |
| 12 | circumstances under which an alleged violator is excused |
| 13 | from paying attorney's fees in specified actions; |
| 14 | providing for specified treatment of payment of the actual |
| 15 | damages or an offer to pay actual damages by an alleged |
| 16 | violator; providing for application of demand letter |
| 17 | provisions to class actions; providing for tolling statute |
| 18 | of limitations periods for specified periods upon mailing |
| 19 | of demand letter; excluding actions brought by the |
| 20 | enforcing authority from the requirements of this act; |
| 21 | requiring the Department of Legal Affairs to prepare a |
| 22 | specified sample form and make it available to the public; |
| 23 | providing applicability; providing an effective date. |
| 24 |
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| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
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| 27 | Section 1. Section 501.2115, Florida Statutes, is created |
| 28 | to read: |
| 29 | 501.2115 Demand letter.-- |
| 30 | (1) As a condition precedent to filing any action under |
| 31 | this part or part VI of this chapter, an alleged violator must |
| 32 | be provided with 30 days' prior written notice of the claimant's |
| 33 | intent to initiate litigation. |
| 34 | (2) The notice must be completed in good faith and shall: |
| 35 | (a) State in substantially the following language: "This |
| 36 | notice is a demand letter under s. 501.2115, Florida Statutes." |
| 37 | (b) State the name, address, and telephone number of the |
| 38 | claimant. |
| 39 | (c) State the name and address of the alleged violator. |
| 40 | (d) Provide the date and a description of the transaction, |
| 41 | event, or circumstance giving rise to the claim. |
| 42 | (e) To the extent applicable, be accompanied by all |
| 43 | transaction documents or other documents upon which the claim is |
| 44 | based or upon which the claimant is relying to assert the claim. |
| 45 | (f) Describe with specificity each alleged violation of |
| 46 | this part or part VI of this chapter. |
| 47 | (g) Include a statement describing and providing the |
| 48 | amount of each item of actual damages demanded by the claimant |
| 49 | and recoverable under this part or part VI of this chapter. |
| 50 | (3) The notice required by this section must be delivered |
| 51 | to the alleged violator by certified or registered mail, return |
| 52 | receipt requested. Such postal costs shall be reimbursed by the |
| 53 | alleged violator when the alleged violator pays the claim if so |
| 54 | requested by the claimant in the notice. If the alleged violator |
| 55 | is a business entity, notice must be sent to the business |
| 56 | entity's registered agent on file with the Secretary of State |
| 57 | or, in the absence of a registered agent, anyone listed in s. |
| 58 | 48.081(1). |
| 59 | (4) If, within 30 days after receipt of the notice, the |
| 60 | alleged violator pays the claim specified in the notice, |
| 61 | together with a surcharge of 10 percent of the alleged actual |
| 62 | damages paid, which surcharge may not exceed $250, no action may |
| 63 | be brought against the alleged violator, and the alleged |
| 64 | violator shall not be obligated to pay any attorney's fees to |
| 65 | the claimant. The surcharge shall not be available in any action |
| 66 | brought under this part or part VI of this chapter after the |
| 67 | demand is rejected or ignored. For purposes of this section, |
| 68 | payment shall be treated as being made on the date a draft or |
| 69 | other valid instrument that is equivalent to payment is placed |
| 70 | in the United States mail in a properly addressed, postpaid |
| 71 | envelope, or, if not so posted, on the date of delivery. |
| 72 | (5) The alleged violator shall not be required to pay |
| 73 | claimant's attorney's fees in a subsequent action brought under |
| 74 | this part or part VI of this chapter if: |
| 75 | (a) The alleged violator, within 30 days after receiving |
| 76 | the notice, notifies the claimant in writing, and a court or |
| 77 | arbitrator in a subsequent action agrees, that the claimant is |
| 78 | either seeking to recover damages not properly recoverable under |
| 79 | this part or part VI of this chapter or is seeking to recover an |
| 80 | excessive amount for such recoverable actual damages, but the |
| 81 | violator offers to pay the claimant all damages that are |
| 82 | properly recoverable and itemized in the notice plus the |
| 83 | surcharge described in subsection (4); or |
| 84 | (b) The claimant fails to comply with this section. |
| 85 | (6) Payment of the actual damages or an offer to pay |
| 86 | actual damages as set forth in subsection (5) shall: |
| 87 | (a) Not constitute an admission by the alleged violator of |
| 88 | any wrongdoing. |
| 89 | (b) Be afforded the protection of s. 90.408. |
| 90 | (c) Serve to release the alleged violator from any suit or |
| 91 | other action that could be brought under this part or part VI of |
| 92 | this chapter arising out of or in connection with the |
| 93 | transaction, event, or occurrence described in the notice. |
| 94 | (d) To the extent of the damages, inclusive of any |
| 95 | surcharge paid by the alleged violator, serve as a defense in |
| 96 | any action for damages not brought under this part or part VI of |
| 97 | this chapter against the alleged violator in connection with the |
| 98 | same set of operative facts as described in the notice. |
| 99 | (7) This section shall apply to class action claims, |
| 100 | subject to the following variations: |
| 101 | (a) In addition to describing the claimant's individual |
| 102 | claim as required by subsection (2), the notice shall also |
| 103 | include: |
| 104 | 1. The definition of the class of claimants for whom |
| 105 | relief is sought. |
| 106 | 2. A description of the alleged violations of this part or |
| 107 | part VI of this chapter that have allegedly damaged the class. |
| 108 | 3. A statement describing and providing the amount of each |
| 109 | item of actual damages demanded by the claimant on behalf of the |
| 110 | class under this part or part VI of this chapter. |
| 111 | (b) The surcharge set forth in subsection (4) shall not |
| 112 | apply. |
| 113 | (c) All time periods described in this section shall be 90 |
| 114 | days. |
| 115 | (d) If the alleged violator agrees to pay the actual class |
| 116 | action damages sought in the class action notice, the alleged |
| 117 | violator must notify the claimant of the decision in writing |
| 118 | within 90 days. Within 90 days after receiving such notice, the |
| 119 | claimant shall file an action to enforce the agreement, the |
| 120 | purpose of which action is to conduct proceedings to determine |
| 121 | the fairness of the agreement to the class, to administer the |
| 122 | agreed-upon resolution of the class claim, to carry out the |
| 123 | notification and the opt-out processes, and to award reasonable |
| 124 | attorney's fees to the claimant's counsel only for actual time |
| 125 | spent in connection with this proceeding. If the claimant fails |
| 126 | to timely file this action or if the court determines that the |
| 127 | agreement is not fair to the class, both the notice and the |
| 128 | alleged violator's response shall be deemed void. |
| 129 | (e) The alleged violator shall not be obligated to pay |
| 130 | claimant's attorney's fees in a subsequent action if the alleged |
| 131 | violator notifies the claimant in writing within 90 days and a |
| 132 | court or arbitrator in a subsequent action agrees: |
| 133 | 1. That the claimant is seeking to recover damages for the |
| 134 | class not properly recoverable under this part or part VI of |
| 135 | this chapter or is seeking to recover for the class an excessive |
| 136 | amount for such properly recoverable actual damages, but still |
| 137 | offers to pay the class all damages properly recoverable and |
| 138 | listed in the notice; or |
| 139 | 2. That the claim or class is not a valid class claim and |
| 140 | is not properly certified as a class, but still offers to pay |
| 141 | the claimant individually all actual damages listed in the |
| 142 | notice that are properly recoverable by the individual claimant, |
| 143 | plus the surcharge described in subsection (4). |
| 144 | (8) The applicable statute of limitations period for an |
| 145 | action under this part or part VI of this chapter shall be |
| 146 | tolled by the mailing of the notice required by this section for |
| 147 | a period of 30 days for an individual claim or 90 days for a |
| 148 | class action claim. |
| 149 | (9) This section does not apply to actions brought by the |
| 150 | enforcing authority. |
| 151 | (10) The Department of Legal Affairs shall prepare a |
| 152 | sample notice to comply with subsection (2) for individual |
| 153 | claims and shall make it available to the public. |
| 154 | Section 2. This act shall take effect October 1, 2006. |