HOME        CONSUMER REPORT            EMAIL                 I need a locksmith / links

 

The underlying laws for the State of Arizona and the Federal laws follow here. 

I will digress here by saying that if it were a legal mandate that election laws required legislators to be attorneys there would be two repercussions:  
1. The nit-picking attorneys would draft laws that were at least consistent with existing law.
2. The non-attorney goal-driven citizenry elected into legislative positions would have no voice - they would never get there. 

I will voluntarily admit being a "lawyer minded nit-picky non-lawyer" and as such, I have presented to at least one member of the Arizona State Legislature information indicating to him/her that in my (not necessarily) humble opinion, whatever group of well-intentioned MORONS that enacted ARS 44-1221 needs to reexamine their thought process, repair the damages done to the consumers in Arizona, and elaborate on their (presumably) stated intent....

 

The statute that my friends and I hope to utilize to put the locksmith scammers out of business is: 

44-1221. Deceptive use of name; classification; attorney general
A. It is unlawful for a person to deceive another person by misrepresenting the geographical origin or location of the person's business in the conduct of the person's business.
B. A person who intentionally or knowingly violates subsection A of this section is guilty of a class 2 misdemeanor.
C. An act or practice in violation of this section is an unlawful practice under section 44-1522 and subject to enforcement through private action and prosecution by the attorney general. The attorney general may investigate and take appropriate action as prescribed by chapter 10, article 7 of this title.

Lets take a few minutes to dissect this law and examine its strengths, weaknesses, necessary corrections: 
A. Title and implied meaning and goals:

44-1221. Deceptive use of name; classification; attorney general  Now on its face the "title" (with no force of law) seems to imply certain things, such as:
    1. The legislature doesn't approve of deceptive uses of company names
    2. The legislature chooses to classify this miscreant behavior in a certain manner
    3. The legislature CHARGES the office of the ARIZONA ATTORNEY GENERAL with enforcement responsibility.      

Analysis - Title / text mismatch: 
The Title of this statute implies one thing, but the law's actual text means something else entirely.                               

    1. Might as well start with the TITLE! The legislature entitles this section "Deceptive use of name" yet makes the operative text of the law read:  "unlawful ...to deceive ... by misrepresenting the ... location of the person's business" one must ask just how confused is the legislature?  Are our legislators unable to ascertain the difference between a "NAME" and a "LOCATION"? The way sub-section A was written indicates that the legislature deemed it sufficiently important that businesses are honest about where their businesses "live", apparently so much so that they forgot all about deceptive use of a "NAME".

 

B. Classification and punishment:
B. A person who intentionally or knowingly violates subsection A of this section is guilty of a class 2 misdemeanor.
One might ask - what exactly does guilty of a class 2 misdemeanor mean? I am not an attorney and therefore cannot and will not give legal advice. From what I have read in the statutes, I believe that persons guilty of a class 2 misdemeanor may serve up to 4 months in the county jail. If my information proves correct, and that through the yellow pages, google, and otherwise, the person(s) running ATLAS are in fact advertising 250 separate telephone numbers listed in various places to 300 different addresses. That would mean there potentially exists  300 class 2  misdemeanor counts which at 4 months per count would calculate to a maximum of consecutive sentence of 1,200 months, meaning any miscreant convicted of this offense and consecutively sentenced could be looking at 100 YEARS in Sheriff Joe's tents. 

Analysis - no escalation for multiple/repeat offenses equals lack of deterrence: 
One might ask - why isn't there some sort of escalation clause? Under several types of laws in multiple jurisdictions if you commit offence x once, or maybe twice it is prosecuted as a misdemeanor and if you keep doing offence x after the 3rd of 4th time, then it is chargeable as a felony. Why should it be any different here? Is it because the legislature feels consumer fraud is a simple little white collar crime that should be let off with a little wrist slapping? 

 

 

C. Enforcement:
C. An act or practice in violation of this section is an unlawful practice under section 44-1522 and subject to enforcement through private action and prosecution by the attorney general. The attorney general may investigate and take appropriate action as prescribed by chapter 10, article 7 of this title.

Analysis - This subsection so muddies the waters as to make the enforcement options incomprehensible:
First, this sub-section "C" should be divided into several different sub-sections that make some kind of statutory and logical sense. Identifying a violation of this statute as an unlawful practice under another section, specifically  44-1522 (which in subsequent sections authorizes action by the AZ Attorney General to take action, including but not limited to appointing a receiver to take over a company)  is great! Not terminating that sentence right there and making more subsections that clarify the legislature's specific exact intent about exactly who can enforce what and how. For instance when "C" says "...violation ... is subject to enforcement through private action and prosecution by the attorney general. "  which of the following statements is true or false and why? 

  1. A private citizen can file a civil suit against an offender.  

  2. A private citizen can file an information or criminal complaint charging misdemeanor offenses in the proper court

  3. The Attorney General can file a civil suit against an offender.

  4. The Attorney General can file an information or criminal complaint charging misdemeanor offenses in the proper court

  5. Since "C" says "private action and prosecution by the attorney general" a City Attorney cannot file an information or criminal complaint charging misdemeanor offenses in the proper court

  6. Since "C" says "private action and prosecution by the attorney general" a City Attorney cannot file a civil suit against an offender.

  7. Since "C" says "private action and prosecution by the attorney general" a County Attorney cannot file an information or criminal complaint charging misdemeanor offenses in the proper court

  8. Since "C" says "private action and prosecution by the attorney general" a County Attorney cannot file a civil suit against an offender.

  9. Since "B" classifies a violation of 44-1221 as "class 2 misdemeanor" is the attorney general prohibited from filing criminal charges because of other statutory language limiting the Attorney General's prosecution of criminal actions to presenting felony cases to a grand jury? 

 

 

This law is BROKEN!    Lets fix it! 

If I were in the legislature, I would propose a law covering this subject matter would be as follows: 

[proposed] 44-1221 Deceptive use of name; Misrepresentation of Business Address/Location;  classification; enforcement
A. Businesses operating within the State of Arizona are prohibited from advertising or attempting to use or do business under any name other than:
    (1) the exact name of a corporate entity filed with the Arizona Corporations Commission
    (2) any authorized "DBA" name, trade name, or trademarked name filed by an individual or corporation pursuant to existing ARS requirements.
B. It is unlawful for a person to deceive another person by misrepresenting the geographical origin or location of the person's business in the conduct of the person's business.
C. A person who intentionally or knowingly violates subsection A or B of this section is guilty of a class 2 misdemeanor for up to the first 5 offenses.  A person who intentionally or knowingly violates subsection A or B of this section 6 or more times is guilty of a class _**__ felony
D. An act or practice in violation of this section is additionally an unlawful practice under section 44-1522.  The attorney general may investigate and take appropriate action as prescribed by chapter 10, article 7 of this title.
E. Violations of 44-1221(A) and 44-1221(B) are subject to enforcement through the following means:
  
(1) private action - any citizen or business may file suit for injunctive relief and/or damages;
    (2) the attorney general may file suit for injunctive relief and/or damages;
    (3) the attorney general or any city attorney or any county attorney may file an information or criminal complaint alleging misdemeanor violations of this section             notwithstanding any other other ARS provision
    (4) the attorney general or any city attorney or any county attorney may present allegations of felony violations of this section to the grand jury in contemplation of an indictment for those crimes.

 

          .....

 

 

 

 

 

 

Article 7 Consumer Fraud

44-1521 Definitions

44-1522 Unlawful practices; intended interpretation of provisions

44-1523 Exemptions

44-1524 Powers of attorney general

44-1525 Confidentiality of information or evidence

44-1526 Subpoena; hearing; rules and regulations

44-1527 Failure to supply information or obey subpoena; hearing

44-1528 Remedies; injunction; other reliefs; receiver

44-1529 Powers of receiver

44-1530 Assurance of discontinuance of unlawful practice

44-1531 Violations; civil penalties

44-1531.01 Revolving fund; use of fund

44-1532 Violation of order or injunction; penalty

44-1533 Cumulative remedies

44-1534 Costs recoverable

 

44-1521. Definitions

In this article, unless the context otherwise requires:

1. "Advertisement" includes the attempt by publication, dissemination, solicitation or circulation, oral or written, to induce directly or indirectly any person to enter into any obligation or acquire any title or interest in any merchandise.

2. "Attorney general" means the attorney general of Arizona or his authorized delegate.

3. "Authorized delegate" means any attorney, investigator or administrative personnel employed by the attorney general and so designated, and, when requested by the county attorney and authorized by the attorney general may include similar personnel employed by the several county attorneys of this state.

4. "Examine" means the inspection, study or copying of any account, book, document, merchandise, paper or record.

5. "Merchandise" means any objects, wares, goods, commodities, intangibles, real estate, or services.

6. "Person" means any natural person or his legal representative, partnership, domestic or foreign corporation, any company, trust, business entity, or association, any agent, employee, salesman, partner, officer, director, member, stockholder, associate, or trustee.

7. " Sale " means any sale, offer for sale, or attempt to sell any merchandise for any consideration, including sales, leases and rentals of any real estate subject to any form of deed restriction imposed as part of a previous sale.

 

44-1522. Unlawful practices; intended interpretation of provisions

A. The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.

B. The violation of chapter 9, article 16 or chapter 19, article 1 of this title is declared to be an unlawful practice and subject to enforcement under this article.

C. It is the intent of the legislature, in construing subsection A, that the courts may use as a guide interpretations given by the federal trade commission and the federal courts to 15 United States Code sections 45, 52 and 55(a)(1).

 

44-1523. Exemptions
Nothing contained in this article shall apply to the owner or publisher of a newspaper, magazine, or other publication of printed matter wherein such advertisement appears, or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher, or operator has no knowledge of the intent, design, or purpose of the advertiser. Further, nothing contained in this article shall apply to any advertisement which is subject to and complies with the rules and regulations of, and the statutes administered by the federal trade commission.

 

44-1524. Powers of attorney general

A. If the attorney general has reasonable cause to believe that a person has engaged in, is engaging in or is about to engage in any practice or transaction which is in violation of this article or order or assurance of discontinuance entered under this article, he may:

1. Require such person to file on such forms as he prescribes a statement or report in writing, under oath, as to all the facts and circumstances concerning the sale or advertisement of merchandise by such person, and such other data and information as he may deem necessary.

2. Examine under oath any person in connection with the sale or advertisement of any merchandise.

3. Examine any merchandise or sample thereof, or any record, book, document, account or paper as he may deem necessary.

4. Pursuant to an order of the superior court, impound any record, book, document, account, paper, or sample or merchandise material to such practice and retain the same in his possession until the completion of all proceedings undertaken under this article or in the courts.

B. This section does not prohibit the attorney general from investigation of violations of this article including requesting a person to respond to a complaint filed against him. A person cannot be compelled to comply with a request to respond to a complaint except in accordance with section 44-1527.

 

44-1525. Confidentiality of information or evidence

All information or evidence provided to the attorney general shall be confidential and shall not be made public unless in the judgment of the attorney general the ends of justice and the public interest will be served by the publication thereof, provided that the names of the interested parties shall not be made public.

 

44-1526. Subpoena; hearing; rules and regulations

A. To accomplish the objectives and to carry out the duties prescribed in this article, the attorney general, in addition to other powers conferred upon him by this article, may:

1. Issue subpoenas to any person.

2. Administer an oath or affirmation to any person.

3. Conduct hearings in aid of any investigation or inquiry.

4. Prescribe such forms and promulgate such procedural rules and regulations as may be necessary to enforce the provisions of this article, which rules and regulations shall have the force of law. Such rules and regulations shall not be inconsistent with the provisions of this article.

B. The attorney general shall serve a demand or subpoena in accordance with one of the following:

1. Service within or without this state in the manner provided under applicable law or rules of procedure for the service of a summons and complaint in a civil action.

2. On a natural person by delivering the demand or subpoena or by mailing the demand or subpoena by registered mail to the person at his last known place of business, residence, or both, within or without this state.

3. On any person other than a natural person by delivering the demand or subpoena or by mailing the demand or subpoena by registered mail to the person authorized or permitted by law to receive service of a complaint and a summons in a civil action.

4. Service as the superior court may direct.

 

44-1527. Failure to supply information or obey subpoena; hearing

A. If any person fails or refuses to fully comply with a demand or any subpoena issued by the attorney general under sections 44-1524 or 44-1526, the attorney general may file a petition with the superior court and, after notice and hearing on the petition, request the following orders until the person complies with the demand or the subpoena:

1. Adjudging such person in contempt of court.

2. Granting injunctive relief, restraining the sale or advertisement of merchandise by such person which is the subject of the investigation.

3. Granting such other relief as the court may deem proper.

B. If the court determines that the attorney general has reasonable cause to believe that the respondent has engaged in, is engaging in or is about to engage in any act, practice or transaction which is in violation of this article or order or assurance of discontinuance entered under this article, the court shall grant the appropriate relief.

C. If the attorney general determines that disclosure to the respondent of the evidence relied on to establish reasonable cause would not be in the best interests of the investigation, he may request and the court may examine the evidence in camera and thereafter make its determination.

 

44-1528. Remedies; injunction; other reliefs; receiver

A. Following an investigation made pursuant to section 44-1524 and when it appears to the attorney general that a person has engaged in or is engaging in any practice declared to be unlawful by this article, he may seek and obtain in an action in the superior court an injunction prohibiting such person from continuing such practices or engaging in the practice or doing any acts in furtherance of the practice after notice as is required by the rules of civil procedure. The court may make such orders or judgments as may be necessary to:

1. Prevent the use or employment by a person of any unlawful practices.

2. Restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice in this article declared to be unlawful, including the appointment of a receiver.

3. Prohibit a person found to have violated this article from engaging in a specified trade or occupation.

B. Following an investigation made pursuant to section 44-1524 and when it appears to the attorney general that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that such person is about to conceal his assets or his person or leave the state, the attorney general may apply to the superior court, ex parte, for an order appointing a receiver of the assets of such person. Upon a showing made by affidavit or other evidence that such person has engaged in or is engaging in a practice declared to be unlawful by this article and that such person is about to conceal his assets or his person or leave the state, the court may order the appointment of a receiver to receive the assets of such person.

 

44-1529. Powers of receiver

When a receiver is appointed by the court pursuant to this article, he shall have the power to sue for, collect, receive, or take into his possession all the goods, and chattels, rights and credits, monies and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use or employment of any unlawful practice, and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and enter such judgments therein as may be required.

 

44-1530. Assurance of discontinuance of unlawful practice

In the enforcement of the provisions of this article, the attorney general may accept an assurance of discontinuance of any act or practice deemed in violation of the provisions of this article from any person engaging in, or who has engaged in, such act or practice. Such assurance may include a stipulation for the payment by such person of reasonable expenses incurred by the attorney general or as restitution to aggrieved persons, or both. Any such assurance shall be in writing and shall be filed with and subject to the approval of the superior court of the county in which the alleged violator resides or has its principal place of business or in Maricopa county. A violation of such assurance within six years of the filing thereof shall constitute prima facie proof of a violation of the provisions of this article. Such assurance of discontinuance shall not be considered an admission of a violation for any purpose.

 

44-1531. Violations; civil penalties

A. If a court finds that any person has wilfully violated section 44-1522, the attorney general upon petition to the court may recover from the person on behalf of the state a civil penalty of not more than ten thousand dollars per violation.

B. For purposes of this section, a wilful violation occurs when the party committing the violation knew or should have known that his conduct was of the nature prohibited by section 44-1522.

 

44-1531.01. Revolving fund; use of fund

A. There is established a consumer protection-consumer fraud revolving fund to be administered by the attorney general under the conditions and for the purposes provided by this section. Monies in the fund are subject to legislative appropriation. Monies in the fund are exempt from the lapsing provisions of section 35-190.

B. Any investigative or court costs, attorney fees or civil penalties recovered for the state by the attorney general as a result of enforcement of either state or federal statutes pertaining to consumer protection or consumer fraud, whether by final judgment, settlement or otherwise, shall be deposited in the fund established by this section, except that such costs, penalties or fees recovered by a county attorney shall be retained in such county and utilized for investigative operations for consumer protection in such county.

C. The monies in the fund shall be used by the attorney general for consumer fraud education and investigative and enforcement operations of the consumer protection division, except that no monies in the fund may be used to compensate or employ attorneys except where necessary to collect monies due under judgments entered pursuant to this article.

D. On or before January 15, April 15, July 15 and October 15, the attorney general shall cause to be filed with the governor, with copies to the director of the department of administration, the president of the senate and the speaker of the house of representatives, a full and complete account of the receipts and disbursements from the fund in the previous calendar quarter.

E. On or before January 15, April 15, July 15 and October 15, each county attorney who retains monies pursuant to subsection B of this section shall provide the county board of supervisors with a full and complete account of the receipts and disbursements of such monies in the previous calendar quarter.

 

44-1532. Violation of order or injunction; penalty

A person who violates any order or injunction issued pursuant to this article shall forfeit and pay to the general fund of the state of Arizona a civil penalty of not more than twenty-five thousand dollars per violation. For the purpose of this section, the superior court in the county issuing any order or injunction shall retain jurisdiction, and the cause shall be continued. In such cases, the attorney general acting in the name of the state may petition for the recovery of civil penalties.

 

44-1533. Cumulative remedies

A. The provisions of this article are in addition to all other causes of action, remedies and penalties available to this state.

B. The provisions of this article shall not bar any claim against any person who has acquired any monies or property, real or personal, by means of any practice declared to be unlawful by this article.

 

44-1534. Costs recoverable

In any action brought under the provisions of this article, the attorney general is entitled to recover costs, which in the discretion of the court may include a sum representing reasonable attorney's fees for the services rendered, for the use of the state.

 

 

Article 11 Hearings

44-1971 Initiation of hearing; purpose of hearing

44-1972 Notice of and opportunity for hearing; time of hearing

44-1973 Conduct of hearing

44-1974 Rehearings

 

 

Article 12 Appeals

44-1981 Judicial review

 

 

 


 

15 USC § 45. Unfair methods of competition unlawful; prevention by Commission

How Current is This?

(a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a (f)(3) of this title, Federal credit unions described in section 57a (f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227 (b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.

(3) This subsection shall not apply to unfair methods of competition involving commerce with foreign nations (other than import commerce) unless—

(A) such methods of competition have a direct, substantial, and reasonably foreseeable effect—

(i) on commerce which is not commerce with foreign nations, or on import commerce with foreign nations; or

(ii) on export commerce with foreign nations, of a person engaged in such commerce in the United States ; and

(B) such effect gives rise to a claim under the provisions of this subsection, other than this paragraph.

If this subsection applies to such methods of competition only because of the operation of subparagraph (A)(ii), this subsection shall apply to such conduct only for injury to export business in the United States .

(4)

(A) For purposes of subsection (a), the term “unfair or deceptive acts or practices” includes such acts or practices involving foreign commerce that—

(i) cause or are likely to cause reasonably foreseeable injury within the United States ; or

(ii) involve material conduct occurring within the United States .

(B) All remedies available to the Commission with respect to unfair and deceptive acts or practices shall be available for acts and practices described in this paragraph, including restitution to domestic or foreign victims.

(b) Proceeding by Commission; modifying and setting aside orders

Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition or unfair or deceptive act or practice in or affecting commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. The person, partnership, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the Commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the Commission to intervene and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be reduced to writing and filed in the office of the Commission. If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by this subchapter, it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition or such act or practice. Until the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, or, if a petition for review has been filed within such time then until the record in the proceeding has been filed in a court of appeals of the United States, as hereinafter provided, the Commission may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section. After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require, except that

(1) the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section; and

(2) in the case of an order, the Commission shall reopen any such order to consider whether such order (including any affirmative relief provision contained in such order) should be altered, modified, or set aside, in whole or in part, if the person, partnership, or corporation involved files a request with the Commission which makes a satisfactory showing that changed conditions of law or fact require such order to be altered, modified, or set aside, in whole or in part. The Commission shall determine whether to alter, modify, or set aside any order of the Commission in response to a request made by a person, partnership, or corporation under paragraph [1] (2) not later than 120 days after the date of the filing of such request.

(c) Review of order; rehearing

Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States, within any circuit where the method of competition or the act or practice in question was used or where such person, partnership, or corporation resides or carries on business, by filing in the court, within sixty days from the date of the service of such order, a written petition praying that the order of the Commission be set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission, and thereupon the Commission shall file in the court the record in the proceeding, as provided in section 2112 of title 28. Upon such filing of the petition the court shall have jurisdiction of the proceeding and of the question determined therein concurrently with the Commission until the filing of the record and shall have power to make and enter a decree affirming, modifying, or setting aside the order of the Commission, and enforcing the same to the extent that such order is affirmed and to issue such writs as are ancillary to its jurisdiction or are necessary in its judgement to prevent injury to the public or to competitors pendente lite. The findings of the Commission as to the facts, if supported by evidence, shall be conclusive. To the extent that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the Commission. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of such additional evidence. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari, as provided in section 1254 of title 28.

(d) Jurisdiction of court

Upon the filing of the record with it the jurisdiction of the court of appeals of the United States to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive.

(e) Exemption from liability

No order of the Commission or judgement of court to enforce the same shall in anywise relieve or absolve any person, partnership, or corporation from any liability under the Antitrust Acts.

(f) Service of complaints, orders and other processes; return

Complaints, orders, and other processes of the Commission under this section may be served by anyone duly authorized by the Commission, either

(a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or the president, secretary, or other executive officer or a director of the corporation to be served; or

(b) by leaving a copy thereof at the residence or the principal office or place of business of such person, partnership, or corporation; or

(c) by mailing a copy thereof by registered mail or by certified mail addressed to such person, partnership, or corporation at his or its residence or principal office or place of business. The verified return by the person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of the same, and the return post office receipt for said complaint, order, or other process mailed by registered mail or by certified mail as aforesaid shall be proof of the service of the same.

(g) Finality of order

An order of the Commission to cease and desist shall become final—

(1) Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time; but the Commission may thereafter modify or set aside its order to the extent provided in the last sentence of subsection (b).

(2) Except as to any order provision subject to paragraph (4), upon the sixtieth day after such order is served, if a petition for review has been duly filed; except that any such order may be stayed, in whole or in part and subject to such conditions as may be appropriate, by—

(A) the Commission;

(B) an appropriate court of appeals of the United States , if

(i) a petition for review of such order is pending in such court, and

(ii) an application for such a stay was previously submitted to the Commission and the Commission, within the 30-day period beginning on the date the application was received by the Commission, either denied the application or did not grant or deny the application; or

(C) the Supreme Court, if an applicable petition for certiorari is pending.

(3) For purposes of subsection (m)(1)(B) of this section and of section 57b (a)(2) of this title, if a petition for review of the order of the Commission has been filed—

(A) upon the expiration of the time allowed for filing a petition for certiorari, if the order of the Commission has been affirmed or the petition for review has been dismissed by the court of appeals and no petition for certiorari has been duly filed;

(B) upon the denial of a petition for certiorari, if the order of the Commission has been affirmed or the petition for review has been dismissed by the court of appeals; or

(C) upon the expiration of 30 days from the date of issuance of a mandate of the Supreme Court directing that the order of the Commission be affirmed or the petition for review be dismissed.

(4) In the case of an order provision requiring a person, partnership, or corporation to divest itself of stock, other share capital, or assets, if a petition for review of such order of the Commission has been filed—

(A) upon the expiration of the time allowed for filing a petition for certiorari, if the order of the Commission has been affirmed or the petition for review has been dismissed by the court of appeals and no petition for certiorari has been duly filed;

(B) upon the denial of a petition for certiorari, if the order of the Commission has been affirmed or the petition for review has been dismissed by the court of appeals; or

(C) upon the expiration of 30 days from the date of issuance of a mandate of the Supreme Court directing that the order of the Commission be affirmed or the petition for review be dismissed.

(h) Modification or setting aside of order by Supreme Court

If the Supreme Court directs that the order of the Commission be modified or set aside, the order of the Commission rendered in accordance with the mandate of the Supreme Court shall become final upon the expiration of thirty days from the time it was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected to accord with the mandate, in which event the order of the Commission shall become final when so corrected.

(i) Modification or setting aside of order by Court of Appeals

If the order of the Commission is modified or set aside by the court of appeals, and if

(1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or

(2) the petition for certiorari has been denied, or

(3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered in accordance with the mandate of the court of appeals shall become final on the expiration of thirty days from the time such order of the Commission was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected so that it will accord with the mandate, in which event the order of the Commission shall become final when so corrected.

(j) Rehearing upon order or remand

If the Supreme Court orders a rehearing; or if the case is remanded by the court of appeals to the Commission for a rehearing, and if

(1) the time allowed for filing a petition for certiorari has expired, and no such petition has been duly filed, or

(2) the petition for certiorari has been denied, or

(3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered upon such rehearing shall become final in the same manner as though no prior order of the Commission had been rendered.

(k) “Mandate” defined

As used in this section the term “mandate”, in case a mandate has been recalled prior to the expiration of thirty days from the date of issuance thereof, means the final mandate.

(l) Penalty for violation of order; injunctions and other appropriate equitable relief

Any person, partnership, or corporation who violates an order of the Commission after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $10,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the Attorney General of the United States. Each separate violation of such an order shall be a separate offense, except that in a case of a violation through continuing failure to obey or neglect to obey a final order of the Commission, each day of continuance of such failure or neglect shall be deemed a separate offense. In such actions, the United States district courts are empowered to grant mandatory injunctions and such other and further equitable relief as they deem appropriate in the enforcement of such final orders of the Commission.

(m) Civil actions for recovery of penalties for knowing violations of rules and cease and desist orders respecting unfair or deceptive acts or practices; jurisdiction; maximum amount of penalties; continuing violations; de novo determinations; compromise or settlement procedure

(1)

(A) The Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person, partnership, or corporation which violates any rule under this chapter respecting unfair or deceptive acts or practices (other than an interpretive rule or a rule violation of which the Commission has provided is not an unfair or deceptive act or practice in violation of subsection (a)(1) of this section) with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule. In such action, such person, partnership, or corporation shall be liable for a civil penalty of not more than $10,000 for each violation.

(B) If the Commission determines in a proceeding under subsection (b) of this section that any act or practice is unfair or deceptive, and issues a final cease and desist order, other than a consent order, with respect to such act or practice, then the Commission may commence a civil action to obtain a civil penalty in a district court of the United States against any person, partnership, or corporation which engages in such act or practice—

(1) after such cease and desist order becomes final (whether or not such person, partnership, or corporation was subject to such cease and desist order), and

(2) with actual knowledge that such act or practice is unfair or deceptive and is unlawful under subsection (a)(1) of this section.

In such action, such person, partnership, or corporation shall be liable for a civil penalty of not more than $10,000 for each violation.

(C) In the case of a violation through continuing failure to comply with a rule or with subsection (a)(1) of this section, each day of continuance of such failure shall be treated as a separate violation, for purposes of subparagraphs (A) and (B). In determining the amount of such a civil penalty, the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(2) If the cease and desist order establishing that the act or practice is unfair or deceptive was not issued against the defendant in a civil penalty action under paragraph (1)(B) the issues of fact in such action against such defendant shall be tried de novo. Upon request of any party to such an action against such defendant, the court shall also review the determination of law made by the Commission in the proceeding under subsection (b) of this section that the act or practice which was the subject of such proceeding constituted an unfair or deceptive act or practice in violation of subsection (a) of this section.

(3) The Commission may compromise or settle any action for a civil penalty if such compromise or settlement is accompanied by a public statement of its reasons and is approved by the court.

(n) Standard of proof; public policy considerations

The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.



[1] So in original. Probably should be “clause”.

 

 

15 USC § 52. Dissemination of false advertisements

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(a) Unlawfulness

It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement—

(1) By United States mails, or in or having an effect upon commerce, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, services, or cosmetics; or

(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in or having an effect upon commerce, of food, drugs, devices, services, or cosmetics.

(b) Unfair or deceptive act or practice

The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in or affecting commerce within the meaning of section 45 of this title.

 

15 USC § 55. Additional definitions

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For the purposes of sections 52 to 54 of this title—

(a) False advertisement

(1) The term “false advertisement” means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug.