Section 646.638 - Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions(1) Except as provided in subsections (8) and (9) of this section, a person that suffers an ascertainable loss of money or property, real or personal, as a result of another person's willful use or employment of a method, act or practice declared unlawful under ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater. The court or the jury may award punitive damages and the court may provide any equitable relief the court considers necessary or proper.(2) A person that brings an action under subsection (1) of this section shall mail a copy of the complaint or other initial pleading to the Attorney General at the time the action commences and, upon entry of any judgment in the action, shall mail a copy of the judgment to the Attorney General. Failure to mail a copy of the complaint is not a jurisdictional defect, but a court may not enter judgment for the plaintiff until proof of mailing is filed with the court. Proof of mailing may be by affidavit or by return receipt of mailing.(3) The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist.(4) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (3) of this section if the action under this section is maintained as a class action pursuant to ORCP 32.(5) Any permanent injunction or final judgment or order the court makes under ORS 646.632 or 646.636 is prima facie evidence in an action brought under this section that the respondent used or employed a method, act or practice declared unlawful under ORS 646.608, but an assurance of voluntary compliance, whether or not approved by the court, is not evidence of the violation.(6) Actions brought under this section must be commenced within one year after the discovery of the unlawful method, act or practice. Notwithstanding this limitation, if a prosecuting attorney filed a complaint to prevent, restrain or punish a violation of ORS 646.608, the complaint tolls the statute of limitations with respect to every private right of action under this section that is based in whole or in part on any matter set forth in the prosecuting attorney's complaint for the period of time in which the proceeding that the prosecuting attorney initiated is pending.(7) Notwithstanding subsection (6) of this section, in any action that a seller or lessor brings against a purchaser or lessee of real estate, goods or services, the purchaser or lessee may assert any counterclaim that the purchaser or lessee has arising out of a violation of ORS 336.184 and 646.605 to 646.652.(8) A class action may be maintained under this section. In any class action under this section: (a) Statutory damages under subsection (1) of this section may be recovered on behalf of class members only if the plaintiffs in the action establish that the members have sustained an ascertainable loss of money or property as a result of a reckless or knowing use or employment by the defendant of a method, act or practice declared unlawful by ORS 646.608;(b) The trier of fact may award punitive damages; and(c) The court may award appropriate equitable relief.(9) This section does not apply to: (a) Any method, act or practice described in ORS 646.608(1)(aa). Actions for violation of laws relating to odometers are provided under ORS 815.410 and 815.415.(b) A violation of ORS 86.726(1)(a) or (2), 86.729(4) or 86.732(1) or (2).Amended by 2013 Ch. 304,§ 14, eff. 6/4/2013, op. 8/4/2013.1971 c.744 §13; 1973 c.235 §5; 1975 c.437 §4; 1977 c.195 §9; 1981 c.897 §78; 1985 c.251 §10b; 1995 c.696 §35; 2001 c.917 §3; 2001 c.924 §§16,18; 2005 c. 42, §§ 3, 4; 2009 c. 327, § 1; 2009 c. 552, § 6