15 U.S.C. § 1693m — Civil liability

Page 1655 TITLE 15—COMMERCE AND TRADE § 1693m 1 See References in Text note below. AMENDMENTS 2010—Pub. L. 111–203 substituted ‘‘Bureau’’ for ‘‘Board’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the des- ignated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of Title 5, Government Organization and Employees. EFFECTIVE DATE Pub. L. 111–24, title IV, § 403, as added by Pub. L. 111–209, § 1, July 27, 2010, 124 Stat. 2254, provided that: ‘‘(a) IN GENERAL.—Except as provided under sub- section (b) of this section, this title [enacting this sec- tion and amending sections 1693m to 1693r of this title and provisions set out as a note under section 1693 of this title] and the amendments made by this title shall become effective 15 months after the date of enactment of this Act [May 22, 2009]. ‘‘(b) EXCEPTION.— ‘‘(1) IN GENERAL.—In the case of a gift certificate, store gift card, or general-use prepaid card that was produced prior to April 1, 2010, the effective date of the disclosure requirements described in sections 915(b)(3) and (c)(2)(B) of the Electronic Funds [prob- ably should be ‘‘Fund’’] Transfer Act [15 U.S.C. 1693l–1(b)(3), (c)(2)(B)] shall be January 31, 2011, pro- vided that an issuer of such a certificate or card shall— ‘‘(A) comply with paragraphs (1) and (2) of section 915(b) of such Act [15 U.S.C. 1693l–1(b)(1), (2)]; ‘‘(B) consider any such certificate or card for which funds expire to have no expiration date with respect to the underlying funds; ‘‘(C) at a consumer’s request, replace such certifi- cate or card that has funds remaining at no cost to the consumer; and ‘‘(D) comply with the disclosure requirements of paragraph (2) of this subsection. ‘‘(2) DISCLOSURE REQUIREMENTS.—The disclosure re- quirements of this subsection are met by providing notice to consumers, via in-store signage, messages during customer service calls, Web sites, and general advertising, that— ‘‘(A) any such certificate or card for which funds expire shall be deemed to have no expiration date with respect to the underlying funds; ‘‘(B) consumers holding such certificate or card shall have a right to a free replacement certificate or card that includes the packaging and materials, typically associated with such a certificate or card; and ‘‘(C) any dormancy fee, inactivity fee, or service fee for such certificates or cards that might other- wise be charged shall not be charged if such fees do not comply with section 915 of the Electronic Funds [probably should be ‘‘Fund’’] Transfer Act [15 U.S.C. 1693l–1]. ‘‘(3) PERIOD FOR DISCLOSURE REQUIREMENTS.—The notice requirements in paragraph (2) of this sub- section shall continue until January 31, 2013.’’ Pub. L. 111–24, title IV, § 403, May 22, 2009, 123 Stat. 1754, which provided that title IV of Pub. L. 111–24 was to become effective 15 months after May 22, 2009, was repealed by Pub. L. 111–209, § 1, July 27, 2010, 124 Stat. 2254. § 1693m. Civil liability (a) Individual or class action for damages; amount of award Except as otherwise provided by this section and section 1693h of this title, any person who fails to comply with any provision of this sub- chapter with respect to any consumer, except for an error resolved in accordance with section 1693f of this title, is liable to such consumer in an amount equal to the sum of— (1) any actual damage sustained by such con- sumer as a result of such failure; (2)(A) in the case of an individual action, an amount not less than $100 nor greater than $1,000; or (B) in the case of a class action, such amount as the court may allow, except that (i) as to each member of the class no minimum recovery shall be applicable, and (ii) the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same person shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the defend- ant; and (3) in the case of any successful action to en- force the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. (b) Factors determining amount of award In determining the amount of liability in any action under subsection (a), the court shall con- sider, among other relevant factors— (1) in any individual action under subsection (a)(2)(A), the frequency and persistence of non- compliance, the nature of such noncompli- ance, and the extent to which the noncompli- ance was intentional; or (2) in any class action under subsection (a)(2)(B), the frequency and persistence of non- compliance, the nature of such noncompli- ance, the resources of the defendant, the num- ber of persons adversely affected, and the ex- tent to which the noncompliance was inten- tional. (c) Unintentional violations; bona fide error Except as provided in section 1693h of this title, a person may not be held liable in any ac- tion brought under this section for a violation of this subchapter if the person shows by a prepon- derance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. (d) Good faith compliance with rule, regulation, or interpretation No provision of this section or section 1693n 1 of this title imposing any liability shall apply to— (1) any act done or omitted in good faith in conformity with any rule, regulation, or inter- pretation thereof by the Bureau or the Board or in conformity with any interpretation or approval by an official or employee of the Bu- reau of Consumer Financial Protection or the Federal Reserve System duly authorized by the Bureau or the Board to issue such inter- pretations or approvals under such procedures as the Bureau or the Board may prescribe therefor; or (2) any failure to make disclosure in proper form if a financial institution utilized an ap- propriate model clause issued by the Bureau or the Board, Page 1656 TITLE 15—COMMERCE AND TRADE § 1693n notwithstanding that after such act, omission, or failure has occurred, such rule, regulation, approval, or model clause is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. (e) Notification to consumer prior to action; ad- justment of consumer’s account A person has no liability under this section for any failure to comply with any requirement under this subchapter if, prior to the institution of an action under this section, the person noti- fies the consumer concerned of the failure, com- plies with the requirements of this subchapter, and makes an appropriate adjustment to the consumer’s account and pays actual damages or, where applicable, damages in accordance with section 1693h of this title. (f) Action in bad faith or for harassment; attor- ney’s fees On a finding by the court that an unsuccessful action under this section was brought in bad faith or for purposes of harassment, the court shall award to the defendant attorney’s fees rea- sonable in relation to the work expended and costs. (g) Jurisdiction of courts; time for maintenance of action Without regard to the amount in controversy, any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. (Pub. L. 90–321, title IX, § 916, formerly § 915, as added Pub. L. 95–630, title XX, § 2001, Nov. 10, 1978, 92 Stat. 3737; renumbered § 916, Pub. L. 111–24, title IV, § 401(1), May 22, 2009, 123 Stat. 1751; amended Pub. L. 111–203, title X, § 1084(1), (4), July 21, 2010, 124 Stat. 2081, 2082.) Editorial Notes REFERENCES IN TEXT Section 1693n of this title, referred to in subsec. (d), was in the original a reference to section 916 of Pub. L. 90–321, and was translated as meaning section 917 of Pub. L. 90–321 to reflect the probable intent of Congress and the renumbering of section 916 of Pub. L. 90–321 as section 917 by Pub. L. 111–24, title IV, § 401(1), May 22, 2009, 123 Stat. 1751. PRIOR PROVISIONS A prior section 916 of Pub. L. 90–321 was renumbered section 917 and is classified to section 1693n of this title. AMENDMENTS 2010—Pub. L. 111–203, § 1084(1), which directed the sub- stitution of ‘‘Bureau’’ for ‘‘Board’’ wherever appearing in section, was not executed in subsec. (d), which was the only place such term appeared, to reflect the prob- able intent of Congress and the amendment by Pub. L. 111–203, § 1084(4). See below. Subsec. (d). Pub. L. 111–203, § 1084(4), struck out ‘‘of Board or approval of duly authorized official or em- ployee of Federal Reserve System’’ after ‘‘interpreta- tion’’ in heading that had been supplied editorially and inserted ‘‘Bureau of Consumer Financial Protection or the’’ before ‘‘Federal Reserve System’’ in par. (1) and ‘‘Bureau or the’’ before ‘‘Board’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the des- ignated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of Title 5, Government Organization and Employees. § 1693n. Criminal liability (a) Violations respecting giving of false or inac- curate information, failure to provide infor- mation, and failure to comply with provi- sions of this subchapter Whoever knowingly and willfully— (1) gives false or inaccurate information or fails to provide information which he is re- quired to disclose by this subchapter or any regulation issued thereunder; or (2) otherwise fails to comply with any provi- sion of this subchapter; shall be fined not more than $5,000 or imprisoned not more than one year, or both. (b) Violations affecting interstate or foreign com- merce Whoever— (1) knowingly, in a transaction affecting interstate or foreign commerce, uses or at- tempts or conspires to use any counterfeit, fic- titious, altered, forged, lost, stolen, or fraudu- lently obtained debit instrument to obtain money, goods, services, or anything else of value which within any one-year period has a value aggregating $1,000 or more; or (2) with unlawful or fraudulent intent, trans- ports or attempts or conspires to transport in interstate or foreign commerce a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument know- ing the same to be counterfeit, fictitious, al- tered, forged, lost, stolen, or fraudulently ob- tained; or (3) with unlawful or fraudulent intent, uses any instrumentality of interstate or foreign commerce to sell or transport a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument know- ing the same to be counterfeit, fictitious, al- tered, forged, lost, stolen, or fraudulently ob- tained; or (4) knowingly receives, conceals, uses, or transports money, goods, services, or anything else of value (except tickets for interstate or foreign transportation) which (A) within any one-year period has a value aggregating $1,000 or more, (B) has moved in or is part of, or which constitutes interstate or foreign com- merce, and (C) has been obtained with a coun- terfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument; or (5) knowingly receives, conceals, uses, sells, or transports in interstate or foreign com- merce one or more tickets for interstate or foreign transportation, which (A) within any one-year period have a value aggregating $500 or more, and (B) have been purchased or ob- tained with one or more counterfeit, ficti- tious, altered, forged, lost, stolen, or fraudu- lently obtained debit instrument; or (6) in a transaction affecting interstate or foreign commerce, furnishes money, property,