Senate Bill No. 47–Senator Wiener

 

Prefiled January 30, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Makes certain opt-out provisions in contracts with consumers unenforceable under certain circumstances. (BDR 52‑24)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to trade practices; making certain opt-out provisions in contracts with consumers unenforceable under certain circumstances; prohibiting a seller of goods or services from making a charge to a credit card of a consumer under certain circumstances; providing civil remedies; making certain acts deceptive trade practices; providing civil and administrative penalties; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 598 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2 to 8, inclusive, of this

1-3  act.

1-4  Sec. 2. As used in sections 2 to 8, inclusive, of this act, unless

1-5  the context otherwise requires, the words and terms defined in

1-6  sections 3, 4 and 5 of this act have the meanings ascribed to them

1-7  in those sections.

1-8  Sec. 3.  “Consumer” means a natural person who purchases,

1-9  other than for resale, goods or services that are used primarily for

1-10  personal, family or household purposes and not for business or

1-11  research purposes.

2-1  Sec. 4.  “Credit card” means any credit card, charge card,

2-2  debit card, bank card or other similar instrument or device that

2-3  may be used by a consumer to purchase goods or services.

2-4  Sec. 5.  “Opt-out provision” means any provision in a

2-5  contract by which a consumer agrees to purchase goods or

2-6  services on a periodic or recurrent basis from a seller and the

2-7  seller is entitled to charge the consumer on a periodic or recurrent

2-8  basis for those goods or services unless the consumer takes

2-9  affirmative action to cancel the purchase, cancel the contract or

2-10  return the goods.

2-11      Sec. 6.  The provisions of sections 2 to 8, inclusive, of this act

2-12  do not apply to a service contract that is subject to the provisions

2-13  of chapter 690C of NRS.

2-14      Sec. 7.  1.  A seller shall not make a charge to a credit card

2-15  of a consumer under the terms of an opt-out provision unless:

2-16      (a) The opt-out provision is contained in a written contract

2-17  that is signed by the consumer;

2-18      (b) The opt-out provision is written in language that is

2-19  understandable and is printed in a typeface that is easy to read;

2-20      (c) The opt-out provision is initialed by the consumer; and

2-21      (d) Not fewer than 20 days before the date on which the first

2-22  charge will be made to a credit card of the consumer, the seller

2-23  has provided the consumer with written notice which:

2-24          (1) States that a charge will be made to the credit card of

2-25  the consumer for the purchase of goods or services unless the

2-26  consumer takes affirmative action in accordance with the terms of

2-27  the opt-out provision; and

2-28          (2) Contains a verbatim copy of the opt-out provision and

2-29  all contact information that is necessary for the consumer to

2-30  exercise his rights under the opt-out provision, including, without

2-31  limitation, all necessary addresses and telephone numbers.

2-32      2.  If a seller makes a charge to a credit card of a consumer in

2-33  violation of the provisions of this section, the consumer may bring

2-34  a civil action to rescind the contract and to recover:

2-35      (a) The total amount of money charged to the credit card of

2-36  the consumer under the contract;

2-37      (b) Statutory damages in an amount equal to three times the

2-38  total amount of money charged to the credit card of the consumer

2-39  under the contract or $10,000, whichever amount is greater; and

2-40      (c) Reasonable attorney’s fees and costs.

2-41      3.  A seller and a consumer may not agree to alter or waive

2-42  the provisions of this section. Any contract that violates the

2-43  provisions of this section is void and must not be given effect to the

2-44  extent that it violates the provisions of this section.

 

3-1  Sec. 8.  1.  The remedies, duties and prohibitions set forth in

3-2  sections 2 to 8, inclusive, of this act are not exclusive and are in

3-3  addition to any other remedies, duties and prohibitions provided by

3-4  law.

3-5  2.  Any violation of sections 2 to 8, inclusive, of this act

3-6  constitutes a deceptive trade practice for the purposes of the civil

3-7  and administrative remedies and penalties set forth in NRS

3-8  598.0903 to 598.0999, inclusive.

3-9  Sec. 9.  The provisions of this act do not apply to any contract

3-10  that is executed before October 1, 2003.

 

3-11  H