Legislature(2003 - 2004)

04/21/2004 08:05 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
         CSHB 56(L&C)-UNFAIR TRADE PRACTICES ATTY FEES/COSTS                                                                
                                                                                                                                
REPRESENTATIVE  LES GARA,  sponsor of  HB 56,  told members  that this                                                          
legislation   has  been   around  for   awhile  and   originated  with                                                          
legislation co-sponsored by Senator  Dyson and Representative Croft in                                                          
1997.  He advised  that Alaska  has the  smallest consumer  protection                                                          
department of  any state.  That section  was comprised  of a  staff of                                                          
about 10 people in the attorney  general's office and is now comprised                                                          
of three half-time  attorneys and one investigator.  In the mid-1990s,                                                          
he and others looked at ways  to bolster consumer protection in Alaska                                                          
without  costing the  state  money  and the  group  came  up with  the                                                          
approach in HB  56. The legislation will fund  consumer protection, in                                                          
part, by charging the people who  engage in bad behavior. He explained                                                          
that the  prevailing party in  a lawsuit is  entitled to Rule  82 fees                                                          
and costs,  which amounts to about  20 percent of attorney  fees and a                                                          
small portion  of costs. He  said what the  government has done,  as a                                                          
matter of public  policy in areas that are  historically under funded,                                                          
is to  fund enforcement costs  in those  areas by charging  the people                                                          
who engage in the bad conduct.                                                                                                  
                                                                                                                                
He noted the guts of HB 56, on  page 1, lines 5-9, say if the attorney                                                          
general's office prevails  in a consumer case, the  party that engaged                                                          
in the  bad conduct should  reimburse the state's  reasonable attorney                                                          
fees and costs of the  investigation. The federal government uses that                                                          
approach in federal anti-trust and  hazardous waste cases. He said the                                                          
consumer protection cases  the attorney general's office  gets run the                                                          
gamut. He  believes that  if HB 56  passes, consumer  protection cases                                                          
will become a revenue generator, possibly justifying more staff.                                                                
                                                                                                                                
SENATOR OGAN  characterized HB 56  as a "we tax  the bad guy  and pass                                                          
the savings on to you" bill.                                                                                                    
                                                                                                                                
CHAIR SEEKINS asked what the defendant would get if he prevailed.                                                               
                                                                                                                                
REPRESENTATIVE GARA said Rule 82 would apply.                                                                                   
                                                                                                                                
CHAIR SEEKINS  asked why  the defendant wouldn't  have the  same right                                                          
[for full reimbursement] as the state.                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA  said that  could  be  done  but doing  so  would                                                          
require a fiscal  note. He indicated that from  an enforcement aspect,                                                          
these cases, which  involve very bad conduct, are  not being resolved.                                                          
The policy  argument is that  when the state loses  a case, it  is not                                                          
because the  state committed fraud.  However, a defendant who  loses a                                                          
case  did so  because  of fraudulent  behavior.  Therefore, the  state                                                          
should not  be penalized as harshly  as a defendant when  it loses. He                                                          
said if the state filed a bad  faith case, court rules would allow the                                                          
other party to get full fees reimbursed  by the state. He said he does                                                          
not believe  the legislature  wants to  open up  the state's  purse to                                                          
reimburse full attorney's fees anytime  the state doesn't win, because                                                          
its conduct  is not  as bad  as the conduct  of someone  who committed                                                          
fraud. He  acknowledged that is a  policy call for the  legislature to                                                          
make.                                                                                                                           
                                                                                                                                
CHAIR  SEEKINS noted  that several  years ago,  a consumer  protection                                                          
assistant  attorney  general went  on  huge  fishing expeditions  with                                                          
Alaska Sales  and Service.  He  does not believe the  company was ever                                                          
convicted of anything.  He asked had the company been  charged with 20                                                          
counts  and then  settled on  one count,  whether the  state would  be                                                          
reimbursed for a costly investigation.                                                                                          
                                                                                                                                
REPRESENTATIVE GARA said it would not. He explained:                                                                            
                                                                                                                                
     In a settlement  it would work like the  marketplace. I mean                                                               
     you, as Alaska Sales and Service,  would say - you know, you                                                               
     got us  on one claim.  The other 19 are  bogus. If we  go to                                                               
     trial, the  court's not  going to  give you  the cost  of an                                                               
     investigation  for those  19 bogus  claims so  you can  keep                                                               
     fighting us  and you  keep running up  your bill,  it's just                                                               
     going to  cost you. So,  I don't  think that would  make its                                                               
     way into the settlement. The state  could ask for it but the                                                               
     guy at Alaska Sales and Service  is going to say no way, not                                                               
     a chance.                                                                                                                  
                                                                                                                                
CHAIR SEEKINS  agreed that many of  the cases brought by  the attorney                                                          
general's office regarding consumer  protection are very egregious but                                                          
he has  a natural aversion to  saying what's good for  the goose isn't                                                          
good for the  gander. He wondered about the risk  faced by a defendant                                                          
taking a case to court compared to the state's risk.                                                                            
                                                                                                                                
REPRESENTATIVE GARA said that is a fair concern.                                                                                
                                                                                                                                
CHAIR SEEKINS asked about Rule 82.                                                                                              
                                                                                                                                
TAPE 04-50, SIDE B                                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA  said  Rule  82   is  "20  percent  of  fair  and                                                          
reasonable. It is a schedule but it's partial..."                                                                               
                                                                                                                                
CHAIR SEEKINS  asked if the only  exception occurs if the  court rules                                                          
that a case was frivolous.                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA  said that  is correct -  reimbursement is  at 100                                                          
percent  if  a  case  is  ruled to  be  frivolous;  anything  else  is                                                          
reimbursed at 10  to 20 percent of  what is considered to  be fair and                                                          
reasonable.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS asked if the court  often determines that a person spent                                                          
more than a reasonable amount.                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA said  it  does. He  noted that  the  bill says  a                                                          
person gets reimbursed  for full, reasonable attorney fees  so that if                                                          
those fees  are unreasonable, they  don't get any  reimbursement. That                                                          
is to prevent the attorney general's office from padding its bill.                                                              
                                                                                                                                
CHAIR SEEKINS asked who determines what is reasonable.                                                                          
                                                                                                                                
REPRESENTATIVE GARA said the judge does.                                                                                        
                                                                                                                                
SENATOR FRENCH  moved CSHB  56(L&C) from  committee with  its attached                                                          
indeterminate fiscal note.                                                                                                      
                                                                                                                                
CHAIR SEEKINS noted that Senator Dyson wanted to testify on the bill.                                                           
                                                                                                                                
SENATOR FRED  DYSON told members  that the attorney fee  provision was                                                          
part of  his and  Representative Croft's original  bill but  the House                                                          
Judiciary Committee  stripped it out.  The bill went forward  with the                                                          
part that allows private attorneys to  capture their costs if they are                                                          
successful. He clarified:                                                                                                       
                                                                                                                                
     It was kind  of a new deal  for me and it was,  in fact, the                                                               
     very circumstance  where Representative  Gara and I  began a                                                               
     relationship  and  we  ran into  lots  of  situations  where                                                               
     people were being taken advantage  of. We had guys that were                                                               
     going to resurface  your driveway, and we had  the blue tarp                                                               
     roofing company  from Mat-Su that  were taking  advantage of                                                               
     folks and the state didn't have  the horsepower to do it and                                                               
     a private  attorney couldn't afford  to do it  because there                                                               
     wasn't a way for him to  recapture his costs and [indisc.] a                                                               
     few hundred,  a few thousand  bucks, and I've had  more than                                                               
     once, and probably a half-dozen  times in the ensuing six or                                                               
     seven years, somebody's come up  and said hey, what you guys                                                               
     did  really worked  because  now we've  got  people who  can                                                               
     afford to  go after these  bunko artists that are  out there                                                               
     and nail them. So I'm  really pleased to have Representative                                                               
     Gara come along  and picking up the pieces  that got knocked                                                               
     out  of this  original piece  of legislation.  So it  really                                                               
     tickles me and I think it will work....                                                                                    
                                                                                                                                
CHAIR  SEEKINS repeated  his  only  concern is  the  possibility of  a                                                          
"scoundrel" assistant attorney  general in that division.  He noted an                                                          
overzealous assistant attorney general can also  do a lot of damage to                                                          
the business community and the public trust.                                                                                    
                                                                                                                                
SENATOR FRENCH repeated his motion to move CSHB 56(L&C) from                                                                    
committee. With no objection, the motion carried.                                                                               
                                                                                                                                
CHAIR SEEKINS announced an at-ease from 6:00 to 6:05 p.m.                                                                       

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