Laws
Protecting Consumers
MIKE COX
ATTORNEY GENERAL
The following information is
presented on-line for informational use only and without warranty as to its
accuracy, timeliness, or completeness. It does not replace any official versions
of this information. (Mich Dept of Attorney General Web Site - www.michigan.gov/ag)
MCL 445.901 et seq;
MSA 19.418(1) et seq
MICHIGAN
CONSUMER PROTECTION ACT
Act 331 of 1976
AN ACT to prohibit certain methods, acts, and practices in trade or commerce; to
prescribe certain powers and duties; to provide for certain remedies, damages,
and penalties; to provide for the promulgation of rules; to provide for certain
investigations; and to prescribe penalties.
History: 1976, Act 331, Eff. Apr. 1, 1977.
The People of the State of Michigan enact:
MCL 445.901 Short title.
Sec. 1. This act shall be known and may be cited as the "Michigan consumer
protection act".
History: 1976, Act 331, Eff. Apr. 1, 1977.
MCL 445.902 Definitions.
Sec. 2. As used in this act:
(a) "Business opportunity" means the sale or lease of any products,
equipment, supplies, or services for the purpose of enabling the
purchaser to start a business, and in which the seller represents 1 or more of
the following:
(i) That the seller will provide locations or assist the purchaser in finding
locations for the use or operation of vending machines, racks, display cases, or
other similar devices, or currency operated amusement machines or devices, on
premises neither owned nor leased by the purchaser or seller.
(ii) That the seller may, in the ordinary course of business, purchase any or
all products made, produced, fabricated, grown, bred, or modified by the
purchaser using whole or in part the supplies, services, or chattels sold to the
purchaser.
(iii) The seller guarantees that the purchaser will derive income from the
business opportunity which exceeds the price paid for the business opportunity;
or that the seller will refund all or part of the price paid for the business
opportunity, or repurchase any of the products, equipment, supplies, or chattels
supplied by the seller, if the purchaser is unsatisfied with the business
opportunity. As used in this subparagraph, "guarantee" means a written
or oral representation that would cause a reasonable person in the purchaser's
position to believe that income is assured.
(iv) That the seller will provide a sales program or marketing program which
will enable the purchaser to derive income from the business opportunity which
exceeds the price paid for the business opportunity. This subparagraph does not
apply to the sale of a marketing program made in conjunction with the licensing
of a federally registered trademark or a federally registered service mark, or
to the sale of a business opportunity for which the purchaser pays less than
$500.00 in total for the business opportunity from anytime before the date of
sale to anytime within 6 months after the date of sale.
Business opportunity, as used in this act, does not include the sale of a
franchise as defined in section 2 of Act No. 269 of the Public Acts of 1974,
being section 445.1502 of the Michigan Compiled Laws, or the sale of an ongoing
business if the owner of that business sells and intends to sell only that
single business opportunity.
(b) "Documentary material" includes the original or copy of a
book,record, report, memorandum, paper, communication, tabulation, map, chart,
photograph, mechanical transcription, or other tangible document or recording,
wherever situated.
(c) "Person" means a natural person, corporation, trust, partnership,
incorporated or unincorporated association, or other legal entity.
(d) "Trade or commerce" means the conduct of a business providing
goods, property, or service primarily for personal, family, or household
purposes and includes the advertising, solicitation, offering for sale or rent,
sale, lease, or distribution of a service or property, tangible or intangible,
real, personal, or mixed, or any other article, or a business opportunity.
"Trade or commerce" does not include the purchase or sale of a
franchise, but does include pyramid and chain promotions, as
"franchise", "pyramid", and "chain promotions" are
defined in Act No. 269 of the Public Acts of 1974, being sections 445.1501 to
445.1545 of the Michigan Compiled Laws.
History: 1976, Act 331, Eff. Apr. 1, 1977;--Am. 1984, Act 91, Imd. Eff.
Apr. 20, 1984.
445.903 Unfair, unconscionable, or deceptive methods, acts, or practices in
conduct of trade or commerce; rules.
Sec. 3. (1) Unfair, unconscionable, or deceptive methods, acts, or practices in
the conduct of trade or commerce are unlawful and are defined as follows:
(a) Causing a probability of confusion or misunderstanding as to the source,
sponsorship, approval, or certification of goods or services.
(b) Using deceptive representations or deceptive designations of geographic
origin in connection with goods or services.
(c) Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they
do not have or that a person has sponsorship, approval, status, affiliation, or
connection that he or she does not have.
(d) Representing that goods are new if they are deteriorated, altered,
reconditioned, used, or secondhand.
(e) 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.
(f) Disparaging the goods, services, business, or reputation of another by false
or misleading representation of fact.
(g) Advertising or representing goods or services with intent not to dispose of
those goods or services as advertised or represented.
(h) Advertising goods or services with intent not to supply reasonably
expectable public demand, unless the advertisement discloses a limitation of
quantity in immediate conjunction with the advertised goods or services.
(i) Making false or misleading statements of fact concerning the reasons for,
existence of, or amounts of price reductions.
(j) Representing that a part, replacement, or repair service is needed when it
is not.
(k) Representing to a party to whom goods or services are supplied that the
goods or services are being supplied in response to a request made by or on
behalf of the party, when they are not.
(l) Misrepresenting that because of some defect in a consumer's home the health,
safety, or lives of the consumer or his or her family are in danger if the
product or services are not purchased, when in fact the defect does not exist or
the product or services would not remove the danger.
(m) Causing a probability of confusion or of misunderstanding with respect to
the authority of a salesperson, representative, or agent to negotiate the final
terms of a transaction.
(n) Causing a probability of confusion or of misunderstanding as to the legal
rights, obligations, or remedies of a party to a transaction.
(o) Causing a probability of confusion or of misunderstanding as to the terms or
conditions of credit if credit is extended in a transaction.
(p) Disclaiming or limiting the implied warranty of merchantability and fitness
for use, unless a disclaimer is clearly and conspicuously disclosed.
(q) Representing or implying that the subject of a consumer transaction will be
provided promptly, or at a specified time, or within a reasonable time, if the
merchant knows or has reason to know it will not be so provided.
(r) Representing that a consumer will receive goods or services
"free", "without charge", or words of similar import without
clearly and conspicuously disclosing with equal prominence in immediate
conjunction with the use of those words the conditions, terms, or prerequisites
to the use or retention of the goods or services advertised.
(s) Failing to reveal a material fact, the omission of which tends to mislead or
deceive the consumer, and which fact could not reasonably be known by the
consumer.
(t) Entering into a consumer transaction in which the consumer waives or
purports to waive a right, benefit, or immunity provided by law, unless the
waiver is clearly stated and the consumer has specifically consented to it.
(u) Failing, in a consumer transaction that is rescinded, canceled, or otherwise
terminated in accordance with the terms of an agreement, advertisement,
representation, or provision of law, to promptly restore to the person or
persons entitled to it a deposit, down payment, or other payment, or in the case
of property traded in but not available, the greater of the agreed value or the
fair market value of the property, or to cancel within a specified time or an
otherwise reasonable time an acquired security interest.
(v) Taking or arranging for the consumer to sign an acknowledgment, certificate,
or other writing affirming acceptance, delivery, compliance with a requirement
of law, or other performance, if the merchant knows or has reason to know that
the statement is not true.
(w) Representing that a consumer will receive a rebate, discount, or other
benefit as an inducement for entering into a transaction, if the benefit is
contingent on an event to occur subsequent to the consummation of the
transaction.
(x) Taking advantage of the consumer's inability reasonably to protect his or
her interests by reason of disability, illiteracy, or inability to understand
the language of an agreement presented by the other party to the transaction who
knows or reasonably should know of the consumer's inability.
(y) Gross discrepancies between the oral representations of the seller and the
written agreement covering the same transaction or failure of the other party to
the transaction to provide the promised benefits.
(z) Charging the consumer a price that is grossly in excess of the price at
which similar property or services are sold.
(aa) Causing coercion and duress as the result of the time and nature of a sales
presentation.
(bb) Making a representation of fact or statement of fact material to the
transaction such that a person reasonably believes the represented or suggested
state of affairs to be other than it actually is.
(cc) Failing to reveal facts that are material to the transaction in light of
representations of fact made in a positive manner.
(dd) Subject to subdivision (ee), representations by the manufacturer of a
product or package that the product or package is 1 or more of the following:
(i) Except as provided in subparagraph (ii), recycled, recyclable, degradable,
or is of a certain recycled content, in violation of guides for the use of
environmental marketing claims published by the federal trade commission, 57 F.R.
p 36363 (August 13, 1992).
(ii) For container holding devices regulated under part 163 (plastic degradable
containers) of the natural resources and environmental protection act, Act No.
451 of the Public Acts of 1994, being sections 324.16301 to 324.16303 of the
Michigan Compiled Laws, representations by a manufacturer that the container
holding device is degradable contrary to the definition provided in that act.
(ee) Representing that a product or package is degradable, biodegradable, or
photo degradable unless it can be substantiated by evidence that the product or
package will completely decompose into elements found in nature within a
reasonably short period of time after consumers use the product and dispose of
the product or the package in a landfill or composting facility, as appropriate.
(ff) Offering a consumer a prize if in order to claim the prize the consumer is
required to submit to a sales presentation, unless a written disclosure is given
to the consumer at the time the consumer is notified of the prize and the
written disclosure meets all of the following requirements:
(i) Is written or printed in a bold type that is not smaller than 10-point.
(ii) Fully describes the prize, including its cash value, won by the consumer.
(iii) Contains all the terms and conditions for claiming the prize, including a
statement that the consumer is required to submit to a sales presentation.
(iv) Fully describes the product, real estate, investment, service, membership,
or other item that is or will be offered for sale, including the price of the
least expensive item and the most expensive item.
(2) The attorney general may promulgate rules to implement this act under the
administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969,
being sections 24.201 to 24.328 of the Michigan Compiled Laws. The rules shall
not create an additional unfair trade practice not already enumerated by this
section. However, to assure national uniformity, rules shall not be promulgated
to implement subsection (1)(dd) or (ee).
History: 1976, Act 331, Eff. Apr. 1, 1977;--Am. 1994, Act 46, Imd. Eff. Mar. 23,
1994;--Am. 1994, Act 276, Imd. Eff. July 11, 1994;--Am. 1996, Act 74, Imd. Eff.
Feb. 26, 1996;--Am. 1996, Act 226, Imd. Eff. May 30, 1996.
Administrative rules: R 14.51 et seq. of the Michigan Administrative Code.
445.903a Home appliance; contents of service contract.
Sec. 3a. (1) As used in this section, "company" means a person engaged
in trade or commerce who provides a service contract to consumers.
(2) A service contract for the repair or maintenance of a home appliance shall
contain the following provision:
If performance of the service contract is interrupted because of a strike or
work stoppage at the company's place of business, the effective period of the
service contract shall be extended for the period of the strike or work
stoppage.
History: Add. 1979, Act 150, Imd. Eff. Nov. 19, 1979.
445.903b Failure of seller to file notice unlawful; form and contents of
notice; notice of change in information; reference to S 445.903 includes
reference to this section.
Sec. 3b. (1) In addition to the unfair, unconscionable, or deceptive methods,
acts, or practices in the conduct of trade or commerce defined in section 3, it
is unlawful for the seller of a business opportunity to fail to file a notice
with the attorney general on or before the first sale of a business opportunity
in this state if the purchaser says more than $500.00 in total for the business
opportunity from anytime before the date of sale to anytime within 6 months
after the date of sale. The form of the notice shall be prescribed by the
attorney general. The attorney general shall not require the seller to file more
than the following information:
(a) The name of the seller.
(b) The name under which the seller intends to do business.
(c) The seller's principal business address.
(d) If the seller is not domiciled in Michigan, a consent to service of process.
(2) The seller shall immediately notify the attorney general of a change in the
information contained in the notice.
(3) A reference to section 3 in this act shall be considered to include a
reference to this section.
History: Add. 1984, Act 91, Imd. Eff. Apr. 20, 1984.
445.903c. Advertising or listing in telephone directory; misrepresenting name
or location prohibited; violation; penalty; applicability to telephone service
provider, publisher, or distributor.
Sec. 3c. (1) A person shall not advertise or cause to be listed in a
telephone directory an assumed or fictitious business name that intentionally
misrepresents where the business is actually located or operating or falsely
states that the business is located or operating in the same area covered by the
telephone directory.
(2) A person who violates this section is subject to a civil fine of not less
than $100.00 or more than $10,000.00.
(3) This section does not apply to a telephone service provider or to the
publisher or distributor of a telephone service directory, unless the conduct
proscribed in this section is on behalf of that telephone service provider or
that publisher or distributor.
History: Add. 1998, Act 229, Eff. Mar. 23, 1999.
445.903d. Advertising or listing in telephone directory; misrepresenting name
or location prohibited; violation; penalty; applicability to telephone service
provider, publisher, or distributor.
Sec. 3d. (1) A person shall not advertise or cause to be listed in a
telephone directory a business address or local telephone number that
intentionally misrepresents where the business is actually located or operating
or that falsely states that the business is located or operating in the same
area covered by the telephone directory.
(2) A person who violates this section is subject to a civil fine of not less
than $100.00 or more than $10,000.00.
(3) This section does not apply to a telephone service provider or to the
publisher or distributor of a telephone directory, unless the conduct proscribed
in this section is on behalf of that telephone service provider or that
publisher or distributor.
(4) This section does not apply to a telephone service provider that lists, in a
telephone directory, a local telephone number that forwards calls to provide
customer service.
History: Add. 1998, Act 230, Eff. Mar. 23, 1999.
445.904 Exemptions; burden of proof.
Sec. 4. (1) This act does not apply to either of the following:
(a) A transaction or conduct specifically authorized under laws administered by
a regulatory board or officer acting under statutory authority of this state or
the United States.
(b) An act done by the publisher, owner, agent, or employee of a newspaper,
periodical, directory, radio or television station, or other communications
medium in the publication or dissemination of an advertisement unless the
publisher, owner, agent, or employee knows or, under the circumstances,
reasonably should know of the false, misleading,or deceptive character of the
advertisement or has a direct financial interest in the sale or distribution of
the advertised goods, property, or service.
(2) Except for the purposes of an action filed by a person under section 11,
this act does not apply to an unfair, unconscionable, or deceptive method, act,
or practice that is made unlawful by:
(a) Chapter 20 of the insurance code of 1956, Act No. 218 of the Public Acts of
1956, as amended, being sections 500.2001 to 500.2093 of the Michigan Compiled
Laws.
(b) The banking code of 1969, Act No. 319 of the Public Acts of 1969, as
amended, being sections 487.301 to 487.598 of the Michigan Compiled Laws.
(c) Act No. 3 of the Public Acts of 1939, as amended, being sections 460.1 to
460.8 of the Michigan Compiled Laws.
(d) The motor carrier act, Act No. 254 of the Public Acts of 1933, as amended,
being sections 475.1 to 479.20 of the Michigan Compiled Laws.
(e) Act No. 125 of the Public Acts of 1963, being sections 550.351 to 550.373 of
the Michigan Compiled Laws.
(3) The burden of proving an exemption from this act is upon the person claiming
the exemption.
History: 1976, Act 331, Eff. Apr. 1, 1977;--Am. 1993, Act 10, Imd. Eff. Mar. 31,
1993.
445.905 Action to restrain defendant by temporary or permanent injunction;
venue; costs; civil penalty; notice to defendant; notice to attorney general;
violation of injunction, order, decree, or judgment; civil penalty; retention of
jurisdiction, continuation of cause, and petition for recovery of civil penalty.
Sec. 5. (1) When the attorney general has probable cause to believe that a
person has engaged, is engaging, or is about to engage in a method, act, or
practice which is unlawful pursuant to section 3, and upon notice given in
accordance with this section, the attorney general may bring an action in
accordance with principles of equity to restrain the defendant by temporary or
permanent injunction from engaging in the method, act, or practice. The action
may be brought in the circuit court of the county where the defendant is
established or conducts business or, if the defendant is not established in this
state, in the circuit court of Ingham county. The court may award costs to the
prevailing party. For persistent and knowing violation of section 3 the court
may assess the defendant a civil penalty of not more than $25,000.00.
(2) Unless waived by the court on good cause shown not less than 10 days before
the commencement of an action under this section the attorney general shall
notify the person of his intended action and give the person an opportunity to
cease and desist from the alleged unlawful method, act, or practice or to confer
with the attorney general in person, by counsel, or by other representative as
to the proposed action before the proposed filing date. The notice may be given
the person by mail, postage prepaid, to his usual place of business or, if the
person does not have a usual place of business, to his last known address, or,
with respect to a corporation, only to a resident agent who is designated to
receive service of process or to an officer of the corporation.
(3) A prosecuting attorney or law enforcement officer receiving notice of an
alleged violation of this act, or of a violation of an injunction, order,
decree, or judgment issued in an action brought pursuant to this section, or of
an assurance under this act, shall immediately forward written notice of the
violation together with any information he may have to the office of the
attorney general.
(4) A person who knowingly violates the terms of an injunction, order, decree,
or judgment issued pursuant to this section shall forfeit and pay to the state a
civil penalty of not more than $5,000.00 for each violation. For the purposes of
this section, the court issuing an injunction, order, decree, or judgment shall
retain jurisdiction, the cause shall be continued, and the attorney general may
petition for recovery of a civil penalty as provided by this section.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.906 Assurance of discontinuance of method, act, or practice.
Sec. 6. (1) When the attorney general has authority to institute an action
or proceeding pursuant to section 5, he may accept an assurance of
discontinuance of a method, act, or practice which is alleged to be unlawful
under section 3 from the person who is alleged to have engaged, be engaging, or
be about to engage in the method, act, or practice. The assurance shall not
constitute an admission of guilt nor be introduced in any other proceeding. The
assurance may include a stipulation for any or all of the following:
(a) The voluntary payment by the person for the costs of investigation.
(b) An amount to be held in escrow pending the outcome of an action.
(c) An amount for restitution to an aggrieved person.
(2) An assurance of discontinuance shall be in writing and may be filed with the
circuit court of Ingham county. The clerk of the court shall maintain a record
of the filings. Unless rescinded by the parties or voided by a court for good
cause, the assurance may be enforced in the circuit court by the parties to the
assurance. The assurance may be modified by the parties or by a court for good
cause.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.907 Subpoena; notice; confidentiality; penalty.
Sec. 7. (1) Upon the ex parte application of the attorney general to the circuit
court in the county where the defendant is established or conducts business or,
if the defendant is not established in this state, in Ingham county, the circuit
court, if it finds probable cause to believe a person has engaged, is engaging,
or is about to engage in a method, act, or practice which is unlawful under this
act, may, after an ex parte hearing, issue a subpoena compelling a person to
appear before the attorney general and answer under oath questions relating to
an alleged violation of this act. A person served with a subpoena may be
accompanied by counsel when he appears before the attorney general. The subpoena
may compel a person to produce the books, records, papers, documents, or things
relating to an alleged violation of this act. During the examination of
documentary material under the subpoena, the court may require a person having
knowledge of the documentary material or the matters contained therein to attend
and give testimony under oath or acknowledgment with respect to the documentary
material.
(2) The subpoena shall include the notice of the time, place, and cause of the
taking of testimony, the examination, or the attendance and shall allow not less
than 10 days before the date of the taking of testimony or examination, unless
for good cause shown the court shortens that period of time.
(3) Service of the notice shall be in the manner provided and subject to the
provisions that apply to service of process upon a defendant in a civil action
commenced in the circuit court.
(4) The notice shall:
(a) State the time and place for the taking of testimony or the examination and
the name and address of the person to be examined. If the name is not known, the
notice shall give a general description sufficient to identify the person or the
particular class or group to which the person belongs.
(b) State a reference to this section and the general subject matter under
investigation.
(c) Describe the documentary material to be produced with reasonable specificity
so as to indicate fairly the material demanded.
(d) Prescribe a return date within which the documentary material shall
be produced.
(e) Identify the members of the attorney general's staff to whom the documentary
material shall be made available for inspection and copying.
(5) At any time before the date specified in the notice, upon motion for good
cause shown, the court may extend the reporting date or modify or set aside the
notice and subpoena.
(6) The documentary material or other information obtained by the attorney
general pursuant to an investigation under this section shall be confidential
records of the office of the attorney general and shall not be available for
public inspection or copying or divulged to any person except as provided in
this section. The attorney general may disclose documentary material or other
information as follows:
(a) To other law enforcement officials.
(b) In connection with an enforcement action brought pursuant to this act.
(c) Upon order of the court, to a party in a private action brought pursuant to
this act.
(7) A person who discloses information designated confidential by this section,
except as permitted by subsection (6) or under court order, is guilty of a
misdemeanor and may be fined not more than $2,500.00, or imprisoned for not more
than 1 year, or both.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.908 Compliance with notice; conduct requiring assessment of civil
penalty; petition for order to enforce compliance; violation of final order;
injunction.
Sec. 8. (1) A person upon whom a notice is served pursuant to section 7
shall comply with the terms of the notice unless otherwise provided by the order
of the circuit court.
(2) A person who does any of the following shall be assessed a civil penalty of
not more than $5,000.00.
(a) Knowingly without good cause fails to appear when served with a notice.
(b) Knowingly avoids, evades, or prevents compliance, in whole or in part, with
an investigation, including the removal from any place, concealment,
destruction, mutilation, alteration, or falsification of documentary material in
the possession, custody, or control of a person subject to the notice.
(c) Knowingly conceals relevant information.
(3) The attorney general may file a petition in the circuit court of the county
in which the person is established or conducts business or, if the person is not
established in this state, in the circuit court of Ingham county for an order to
enforce compliance with a subpoena or this section. A violation of a final order
entered pursuant to this section shall be punished as civil contempt.
(4) Upon the petition of the attorney general, the circuit court may enjoin a
person from doing business in this state if the person persistently and
knowingly evades or prevents compliance with an injunction issued pursuant to
this act.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.909 Publication, public inspection and copying, and distribution of
rules, final judgments, assurance of discontinuance, and other matters; request;
fee.
Sec. 9. (1) The attorney general shall publish, make available for public
inspection and copying during business hours, and distribute by subscription
upon the request of any person:
(a) Rules promulgated under section 3 (2).
(b) Copies of final judgments rendered under this act provided to the attorney
general by clerks of the courts pursuant to section 12 (1).
(c) Any other matter as required by Act No. 306 of the Public Acts of 1969, as
amended.
(d) An assurance of discontinuance entered into pursuant to section 6.
(2) The attorney general may charge a reasonable fee to cover the expense of
copying or distribution.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.910 Class action by attorney general for actual damages; order; hearing;
receiver; sequestration of assets; cost of notice; limitations.
Sec. 10. (1) The attorney general may bring a class action on behalf of persons
residing in or injured in this state for the actual damages caused by any of the
following:
(a) A method, act, or practice in trade or commerce defined as unlawful under
section 3.
(b) A method, act, or practice in trade or commerce declared to be unlawful
under section 3 (1) by a final judgment of the circuit court or an appellate
court of this state which is either reported officially or made available for
public dissemination pursuant to section 9 by he attorney general not less than
30 days before the method, act, or practice on which the action is based occurs.
(c) A method, act, or practice in trade or commerce declared by a circuit court
of appeals or the supreme court of the United States to be an unfair or
deceptive act or practice within the meaning of section 5(a)(1) of the federal
trade commission act, 15 U.S.C. 45(a)(1), in a decision which affirms or directs
the affirmance of a cease and desist order issued by the federal trade
commission if the order is final within the meaning of section 5(g) of the
federal trade commission act, 15 U.S.C. 45(g), and which is officially reported
not less than 30 days before the method, act, or practice on which the action is
based occurs. For purposes of this subdivision, a method, act, or practice shall
not be deemed to be unfair or deceptive within the meaning of section 5(a)(1) of
the federal trade commission act solely because the method, act, or practice is
made unlawful by another federal statute that refers to or incorporates section
5(a)(1) of the federal trade commission act.
(2) On motion of the attorney general and without bond in an action under this
section the court may make an appropriate order: to reimburse persons who have
suffered damages; to carry out a transaction in accordance with the aggrieved
persons' reasonable expectations; to strike or limit the application of
unconscionable clauses of contracts to avoid an unconscionable result; or to
grant other appropriate relief. The court after a hearing may appoint a receiver
or order sequestration of the defendant's assets if it appears to the
satisfaction of the court that the defendant threatens or is about to remove,
conceal, or dispose of his assets to the detriment of members of the class.
(3) If at any stage of the proceedings the court requires that notice be sent to
the class, the attorney general may petition the court to require the defendant
to bear the cost of the notice. In determining whether to impose the cost on the
defendant or the state, the court shall consider the probability that the
attorney general will succeed on the merits of the action.
(4) If the defendant shows by a preponderance of the evidence that a violation
of this act resulted from a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid the error, the amount of recovery shall
be limited to actual damages.
(5) An action shall not be brought by the attorney general under this section
more than 6 years after the occurrence of the method, act, or practice which is
the subject of the action nor more than 1 year after the last payment in a
transaction involving the method, act, or practice which is the subject of the
action, whichever period of time ends on a later date.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.911 Action by person for declaratory judgment, injunction, or actual
damages; class action by person or actual damages; order; hearing; receiver;
sequestration of assets; cost of notice; limitations.
Sec. 11. (1) Whether or not he seeks damages or has an adequate remedy at
law, a person may bring an action to do either or both of the following:
(a) Obtain a declaratory judgment that a method, act, or practice is unlawful
under section 3.
(b) Enjoin in accordance with the principles of equity a person who is engaging
or is about to engage in a method, act, or practice which is unlawful under
section 3.
(2) Except in a class action, a person who suffers loss as a result of a
violation of this act may bring an action to recover actual damages or $250.00,
whichever is greater, together with reasonable attorneys' fees.
(3) A person who suffers loss as a result of a violation of this act may bring a
class action on behalf of persons residing or injured in this state for the
actual damages caused by any of the following:
(a) A method, act, or practice in trade or commerce defined as unlawful under
section 3.
(b) A method, act, or practice in trade or commerce declared to be unlawful
under section 3(1) by a final judgment of the circuit court or an appellate
court of this state which is either reported officially or made available for
public dissemination pursuant to section 9 by the attorney general not less than
30 days before the method, act, or practice on which the action is based occurs.
(c) A method, act, or practice in trade or commerce declared by a circuit court
of appeals or the supreme court of the United States to be an unfair or
deceptive act or practice within the meaning of section 5(a)(1) of the federal
trade commission act, 15 U.S.C. 45(a)(1), in a decision which affirms or directs
the affirmance of a cease and desist order issued by the federal trade
commission if the order is final within the meaning of section 5(g) of the
federal trade commission act, 15 U.S.C. 45(g), and which is officially reported
not less than 30 days before the method, act, or practice on which the action is
based occurs. For purposes of this subdivision, a method, act, or practice shall
not be deemed to be unfair or deceptive within the meaning of section 5(a)(1) of
the federal trade commission act solely because the method, act, or practice is
made unlawful by another federal statute that refers to or incorporates section
5(a)(1) of the federal trade commission act.
(4) On motion of a person and without bond in an action brought under subsection
(3) the court may make an appropriate order: to reimburse persons who have
suffered damages; to carry out a transaction in accordance with the aggrieved
persons' reasonable expectations; to strike or limit the application of
unconscionable clauses of contracts to avoid an unconscionable result; or to
grant other appropriate relief. The court after a hearing may appoint a receiver
or order sequestration of the defendant's assets if it appears to the
satisfaction of the court that the defendant threatens or is about to remove,
conceal, or dispose of his assets to the detriment of members of the class.
(5) If at any stage of proceedings brought under subsection (3) the court
requires that notice be sent to the class, a person may petition the court to
require the defendant to bear the cost of notice. In determining whether to
impose the cost on the defendant or the plaintiff, the court shall consider the
probability that the person will succeed on the merits of his action.
(6) If the defendant shows by a preponderance of the evidence that a violation
of this act resulted from a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid the error, the amount of recovery shall
be limited to actual damages.
(7) An action under this section shall not be brought more than 6 years after
the occurrence of the method, act, or practice which is the subject of the
action nor more than 1 year after the last payment in a transaction involving
the method, act, or practice which is the subject of the action, whichever
period of time ends at a later date. However, when a person commences an action
against another person, the defendant may assert, as a defense or counterclaim,
any claim under this act rising out of the transaction on which the action is
brought.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.912 Mailing copy of complaint, judgment, decree, or order to attorney
general; violation of injunction as evidence.
Sec. 12. (1) Upon commencement of an action brought pursuant to section 11
or section 15, the clerk of the court shall mail a copy of the complaint to the
attorney general, and upon entry of a judgment or decree in the action, the
clerk of the court shall mail a copy of the judgment, decree, or order to the
attorney general.
(2) In a subsequent action by the attorney general brought pursuant to section
10 proof of a violation of a permanent injunction issued pursuant to section 5
is conclusive evidence that the defendant engaged in a method, act, or practice
which is unlawful under this act.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.913 Filing fees for commencing action or filing voluntary assurance.
Sec. 13. When the attorney general or prosecuting attorney commences an action
or files a voluntary assurance pursuant to this act, filing fees shall not be
required to be paid.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.914 Investigation by law enforcement officer.
Sec. 14. A law enforcement officer in the state, if requested by the attorney
general or a prosecuting attorney, shall aid and assist in an investigation of
an alleged or actual violation of this act.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.915 Investigation and prosecution by prosecuting attorney.
Sec. 15. A prosecuting attorney may conduct an investigation pursuant to
this act and may institute and prosecute an action under this act in the same
manner as the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.916 Other causes of action not affected; inconsistent ordinance or
regulation prohibited.
Sec. 16. This act shall not affect any other cause of action which is available.
A city, village, township, or county shall not enact an ordinance or other
regulation inconsistent with this act or with a rule promulgated pursuant to
this act.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.917 Investigation of financial institutions; subpoena; report.
Sec. 17. (1) The commissioner of the financial institutions bureau may
investigate, in the manner set forth in section 7, a state or federally
chartered bank, savings and loan association, or credit union, or a regulatory
loan licensee which the commissioner believes has engaged, is engaging, or is
about to engage in a method, act, or practice which is unlawful under this act.
(2) When the commissioner requires the use of the subpoena power provided in
this act, an application shall be made to the attorney general, who shall
proceed to procure a subpoena on behalf of the commissioner in accordance with
section 7.
(3) Upon conclusion of an investigation, the commissioner shall provide
a full report to the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.918 Investigation of public utilities; subpoena; report.
Sec. 18. (1) The public service commission may investigate, in the manner
set forth in section 7, a public utility subject to its jurisdiction pursuant to
Act No. 3 of the Public Acts of 1939, as amended, being sections 460.1 to 460.8
of the Michigan Compiled Laws, the motor carrier act, Act No. 254 of the Public
Acts of 1933, as amended, being sections 475.1 to 479.20 of the Michigan
Compiled Laws, and the Michigan telecommunication act, Act No. 179 of the Public
Acts of 1991, being sections 484.2101 to 484.2605 of the Michigan Compiled Laws,
which the commission believes has engaged, is engaging, or is about to engage in
a method, act, or practice which is unlawful under this act.
(2) When the commission requires the use of the subpoena power provided in this
act, an application shall be made to the attorney general who shall procure a
subpoena on behalf of the commission in accordance with section 7.
(3) Upon conclusion of an investigation, the commission shall provide a full
report to the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977;--Am. 1993, Act 10, Imd. Eff. Mar. 31,
1993.
445.919 Investigation of certain persons by cemetery commission; subpoena;
report.
Sec. 19. (1) The cemetery commission may investigate, in the manner set
forth in section 7, a person subject to Act No. 251 of the Public Acts of 1968,
as amended, being sections 456.521 to 456.543 of the Michigan Compiled Laws, who
the commission believes has engaged, is engaging, or is about to engage in a
method, act, or practice which is unlawful under this act.
(2) When the commission requires the use of the subpoena power provided in this
act, an application shall be made to the attorney general, who shall proceed to
procure a subpoena on behalf of the commission in accordance with section 7.
(3) Upon conclusion of an investigation, the commission shall provide a full
report to the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.920 Investigation of certain persons by director of department of commerce;
subpoena; report.
Sec. 20. (1) The director of the department of commerce may investigate, in the
manner set forth in section 7, a person subject to Act No. 265 of the Public
Acts of 1964, as amended, being sections 451.501 to 451.818 of the Michigan
Compiled Laws; Act No. 229 of the Public Acts of 1963, as amended, being
sections 559.1 to 559.31 of the Michigan Compiled Laws; Act No. 284 of the
Public Acts of 1972, as amended, being sections 450.1101 to 450.2099 of the
Michigan Compiled Laws; or Act No. 269 of the Public Acts of 1974, being
sections 445.1501 to 445.1545 of the Michigan Compiled Laws, who the director
believes has engaged, is engaging, or is about to engage in a method, act, or
practice which is unlawful under this act.
(2) When the director requires the use of the subpoena power provided in this
act, an application shall be made to the attorney general, who shall proceed to
procure a subpoena on behalf of the director in accordance with section 7.
(3) Upon conclusion of an investigation, the director shall provide a full
report to the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.921 Investigation of certain persons by commissioner of insurance;
subpoena; report.
Sec. 21. (1) The commissioner of insurance may investigate, in the manner set
forth in section 7, a person subject to Act No. 218 of the Public Acts of 1956,
as amended, being sections 500.100 to 500.8302 of the Michigan Compiled Laws,
who the commissioner believes has engaged, is engaging, or is about to engage in
a method, act, or practice which is unlawful under this act.
(2) When the commissioner requires the use of the subpoena power provided in
this act, an application shall be made to the attorney general, who shall
proceed to procure a subpoena on behalf of the commissioner in accordance with
section 7.
(3) Upon conclusion of an investigation, the commissioner shall provide a full
report to the attorney general.
History: 1976, Act 331, Eff. Apr. 1, 1977.
445.922 Effective date.
Sec. 22. This act shall take effect April 1, 1977.
History: 1976, Act 331, Eff. Apr. 1, 1977.