§ 4-75-212 — Civil actions and settlements by the Attorney General

Arkansas § 4-75-212

• Jurisdiction: Arkansas
• Title: 4

Text

(a) In addition to the other remedies provided in this subchapter, whenever the Attorney General has reason to believe that any person is engaging, has engaged, or is about to engage in any act or practice declared unlawful by this subchapter, the Attorney General may bring an action in the name of the state against that person: (1) To obtain a declaratory judgment that the act or practice violates the provisions of this subchapter; (2) To enjoin any act or practice that violates the provisions of this subchapter by issuance of a temporary restraining order or preliminary or permanent injunction, without bond, upon the giving of appropriate notice; (3) To recover on behalf of the state and its agencies actual damages or restitution for loss incurred either directly or indirectly; and (4) To recover civil penalties of up to one thousand dollars ($1,000) per violation of this subchapter, or any injunction, judgment or consent order issued or entered into under the provisions of this subchapter and reasonable expenses, investigative costs, and attorney's fees. (b) The Attorney General may also bring a civil action in the name of the state, as parens patriae on behalf of natural persons residing in this state, to secure monetary relief as provided under this section for injury, directly or indirectly sustained by those persons because of any violation of this subchapter, in accordance with the following provisions: (1) (A) The circuit court shall award the Attorney General as monetary relief actual damages sustained or restitution for loss incurred as a result of the violations of this subchapter, and the cost of suit, including a reasonable attorney's fee. (B) The court shall exclude from the amount of monetary relief awarded in the action any amount which duplicates amounts that have been awarded for the same injury already or which are allocable to persons who have excluded their claims under subdivision (b)(3)(A) of this section. (C) The treble damages recoverable under § 4-75-211(b)(3) are not recoverable under a parens patriae action brought under this section; (2) (A) In any action brought under this section, the Attorney General shall, at the time, in the manner, and with the content as the court may direct, cause notice of the parens patriae action to be given by publication. (B) If the court finds that notice given solely by publication would deny due process of law to any person, the court shall direct the Attorney General to give the notice as may be required by due process of law; (3) (A) Any person on whose behalf an action is brought under this section may elect to exclude from the adjudication the portion of the Attorney General's claim for monetary relief attributable to him or her by filing notice of the election with the court, within the time period specified in the notice of the action given to the persons to be benefited by the action. (B) Any person failing to give the notice shall be barred during the pendency of the action from commencing an action in his or her own name for the injury alleged in the action and the final judgment in the action shall be res judicata as to any claim which could be brought by the person under this act based on the facts alleged or proven in the action. (C) (i) The provisions of §§ 4-75-212 - 4-75-216 of this subchapter shall apply only to actions instituted by the Attorney General. (ii) Nothing contained in the provisions set forth in §§ 4-75-212 - 4-75-216 should be deemed to expand the rights or remedies available to persons proceeding under any action instituted by one (1) or more persons or an entity other than the Attorney General, for violations of the provisions of this subchapter; and (4) All damages shall be distributed in a manner that will afford each person a reasonable opportunity to secure his or her appropriate portion of the net monetary relief, including a distribution under the theory of cy pres, subject to approval by the court. (c) (1) In lieu of instigating or continuing an action or proceeding, or to conclude an investigation commenced or contemplated under this subchapter, the Attorney General may accept a consent decree with respect to any act or practice alleged to be a violation of this subchapter. (2) The consent decree may include a stipulation for the payment of civil penalties, the Attorney General's reasonable expenses, investigative costs and attorney's fees, an agreement to pay damages or to allow for restitution of money, property, or other things received in connection with a violation of this act, and agreed to injunctive provisions. (3) Before any consent decree entered into under this section is effective, it must be approved by the circuit court, the federal district court, or if an action has already been commenced, the court in which the action is pending and an entry made in that court in the manner required for making an entry of judgment. (4) (A) If the consent decree submitted to the court is to settle an action brought under subsection (b) of this section, notice of the proposed settlement shall be given in the manner as the court directs. (B) Once court approval is received, any breach of the conditions of the consent decree shall be treated as a violation of a court order, and shall be subject to all penalties provided by law for violation of court orders. (d) In addition to actions under state law, the Attorney General may proceed under any antitrust laws in the federal courts on behalf of this state or any of its agencies, or as parens patriae on behalf of natural persons in this state.

Legislative History

Acts 2003, No. 1172, § 1.