Chapter 646

 

      Chapter 646

 

NOTES OF DECISIONS

 

      Subject matter regulated by this chapter is not “preempted” by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

 

      Whether an injunction should issue when a court finds a violation of the Act is a matter of discretion. State ex rel Johnson v. International Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

 

      This chapter imposes no affirmative duty to inform customers of rates in absence of request, but prohibits making information about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied

 

      646.010 to 646.180

 

NOTES OF DECISIONS

 

      These sections were modeled after Robinson-Patman amendment to Clayton Act and federal cases interpreting federal statutes are persuasive in their interpretation. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

 

      Price discrimination under Oregon Anti-Price Discrimination Law may include buy-back of obsolete inventory and difference in credit terms available to competing dealers. Forster v. Kawasaki Motors Corp., 73 Or App 439, 698 P2d 1001 (1985), Sup Ct review denied

 

ATTY. GEN. OPINIONS: “Kickbacks” on school photographer contracts, (1974) Vol 37, p 49

 

LAW REVIEW CITATIONS: 51 OLR 341-354, 408 (1972)

 

      646.030

 

NOTES OF DECISIONS

 

      This section provides exception to state price discrimination prohibitions by specific exemption allowing cooperative association to return to members, producers or consumers net earnings in proportion to their purchases through association. Pacific Stationery & Printing Co., v. Northwest Wholesale Stationers, Inc., 715 F2d 1393 (1983)

 

      646.040

 

NOTES OF DECISIONS

 

      In action between competitors in ready-mix concrete industry, evidence was insufficient to establish substantial impairment of competition as required by this section. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

 

      In action by auto body shop against insurance company for knowing receipt of prohibited price discriminations under this section and ORS 646.090, judgment n.o.v. was properly granted defendant for lack of evidence that price discriminations received by defendant from another body shop could have affected competition among body shops or insurance companies or tended to create monopoly in either market. Top Service Body Shop, Inc. v. Allstate Insurance Co., 283 Or 201, 582 P2d 1365 (1978)

 

      Under this section denial of directed verdict was proper where there was evidence that defendant competed with plaintiff in plaintiff’s market, even though plaintiff did not compete with defendant in defendant’s market. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by311 Or 88, 806 P2d 123 (1991)

 

      Trial court erred in ruling that jury could consider plaintiff’s evidence relating to noncurrent inventory in awarding damages for price discrimination. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by311 Or 88, 806 P2d 123 (1991)

 

      This provision prohibits only those price differentials that injure competitive process. Cain v. Chevron U.S.A., Inc., 757 F Supp 1120 (D. Or. 1991), aff’d 972 F2d 1337

 

      646.050

 

NOTES OF DECISIONS

 

      In action between competitors in Ready-Mix concrete industry, allegations of complaint that defendants engaged in “geographic” price discrimination were not proved. Redmond Ready-Mix Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

 

      646.060

 

NOTES OF DECISIONS

 

      First part of this section, as applied to a “scheme” or “device . . . whereby discrimination is . . . effected,” within meaning of ORS 646.010, is not modified by second part of this section so as to limit its application to persons who are “agents, representatives or other intermediaries . . . acting for or in behalf of or . . . subject to the direct or indirect control of the other party to the transaction.” W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

 

      646.090

 

NOTES OF DECISIONS

 

      In action by auto body shop against insurance company for knowing receipt of prohibited price discriminations under this section and ORS 646.040, judgment n. o. v. was properly granted defendant for lack of evidence that price discriminations received by defendant from another body shop could have affected competition among body shops or insurance companies or tended to create monopoly in either market. Top Service Body Shop, Inc. v. Allstate Insurance Co., 283 Or 201, 582 P2d 1365 (1978)

 

      646.160

 

NOTES OF DECISIONS

 

      This provision prohibits only those price differentials that injure competitive process. Cain v. Chevron U.S.A., Inc., 757 F Supp 1120 (D. Or. 1991), aff’d 972 F2d 1337

 

      646.267

      See annotations under ORS 646A.154.

 

      646.315 to 646.375

 

      See annotations under ORS 646A.400 to 646A.418.

 

      646.315

 

      See annotations under ORS 646A.400.

 

      646.325

 

      See annotations under ORS 646A.402.

 

      646.359

 

      See annotations under ORS 646A.412.

 

      646.375

 

      See annotations under ORS 646A.418.

 

      646.461 to 646.475

 

LAW REVIEW CITATIONS: 35 WLR 629 (1999)

 

      646.469

 

NOTES OF DECISIONS

      Portion of statute allowing court to prohibit person involved in litigation from disclosing trade secret without permission was unconstitutional content-based restraint on free speech. State ex rel Sports Management News v. Nachtigal, 324 Or 80, 921 P2d 1304 (1996)

 

LAW REVIEW CITATIONS: 35 WLR 629 (1999)

 

      646.473

 

NOTES OF DECISIONS

 

      Preemption applies to claim seeking other remedy where claim seeking other remedy is based on same operative facts that support claim for misappropriation of trade secret. Acrymed, Inc. v. Convatec, 317 F. Supp. 2d 1204 (D. Or. 2004)

 

      646.605 to 646.652

 

NOTES OF DECISIONS

 

      Where users of IUDs brought suit against manufacturer on variety of grounds, claiming damages for infertility, private enforcement provision of Oregon Unlawful Trade Practices Act (UTPA) does not provide remedy for personal injuries. Allen v. G.D. Searle and Co., 708 F Supp 1142 (D. Or. 1989)

 

      For purposes of applying Oregon Unlawful Trade Practices Act, real estate, goods or services are obtained primarily for personal, family or household purposes if (1) real estate, good or service is customarily purchased by substantial number of people for personal, family or household use and (2) person actually purchases real estate, good or service for personal, family or household use. Fowler v. Cooley, 239 Or App 338, 245 P3d 155 (2010)

 

LAW REVIEW CITATIONS: 51 OLR 335, 346, 408 (1972); 53 OLR 473-475 (1974); 94 OLR 589 (2016)

 

      646.605 to 646.656

 

NOTES OF DECISIONS

 

      A complaint which alleges in one count that defendants advertised automobile for sale with intent not to sell it as advertised, in a second count that there was a failure to disclose advertised price coupled with sale at greater amount sufficiently pleads action under Act. Sanders v. Francis, 277 Or 593, 561 P2d 1003 (1977)

 

      Plaintiff’s purchase of truck to carry on business of hauling freight in order to provide family investment and employment for family member did not fall within provisions of Act. Searle v. Exley Express, Inc., 278 Or 535, 564 P2d 1054 (1977)

 

      Amendment of definition of “trade” and “commerce” to include “advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services” does not indicate legislative intent to extend application of Unfair Trade Practices Act to loans and extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

 

      There is no requirement that consumer prove all elements of common law fraud in order to recover damages under Unlawful Trade Practices Act. Raudebaugh v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

 

      Plaintiff’s allegations that defendant escrow company represented that plaintiff would receive security interests on notes from sale of their business did not constitute misrepresentations actionable under Unlawful Trade Practices Act. Samuels v. Key Title Co., 63 Or App 627, 665 P2d 362 (1983), Sup Ct review denied

 

LAW REVIEW CITATIONS: 56 OLR 490 (1977); 13 WLJ 455 (1977)

 

      646.605

 

NOTES OF DECISIONS

 

      Absent evidence that finance company helped seller of automobile and directly or vicariously made misrepresentations to buyer, buyer was not entitled to award of punitive damages against finance company. Harris v. Chalet Car Company, 280 Or 679, 572 P2d 623 (1977)

 

      Definition of “real estate, goods or services” does not include business opportunities other than opportunities similar in nature to franchises and distributorships. Graham v. Kold Kist Beverage Ice, Inc., 43 Or App 1037, 607 P2d 759 (1979)

 

      “Wilful violation,” as defined by this section, requires only proof by preponderance of evidence. State ex rel Redden v. Discount Fabrics, 289 Or 375, 615 P2d 1034 (1980)

 

      Hay baler bought for use on family farm was not goods “customarily bought by substantial number of purchasers for personal, family or household purposes.” Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

      Department of Justice need not show prior to issuing investigative demand pursuant to ORS 646.618 that recipient of investigative demand, or entity being investigated, is engaged in type of business subject to investigation. Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 863 P2d 1263 (1993)

 

LAW REVIEW CITATIONS: 73 OLR 639 (1994)

 

      646.607

 

NOTES OF DECISIONS

 

      Where plaintiff law firm represented creditors and worked as debt collector, plaintiff’s relationship with creditors and debtors was sufficient to satisfy “in connection with” element regarding “unconscionable tactic” so that this section applies to plaintiff’s conduct. Daniel N. Gordon, PC v. Rosenblum, 361 Or 352, 393 P3d 1122 (2017)

 

LAW REVIEW CITATIONS: 16 WLR 509 (1979); 73 OLR 639 (1994)

 

      646.608

 

NOTES OF DECISIONS

 

      Ascertainable loss is necessary under this section to bring individual action to recover damages. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

 

      The making of loans is not “sale or offering for sale” of goods or service or “the conduct of any trade or commerce” under the Unlawful Trade Practices Act. Haeger v. Johnson, 25 Or App 131, 548 P2d 532 (1976)

 

      This section should apply only to those unlawful practices which arise out of transactions which are at least indirectly connected with ordinary and usual course of the defendant’s business, vocation or occupation. Wolverton v. Stanwood, 278 Or 341, 563 P2d 1203 (1977)

 

      Action could not lie where no assertion was made that particular repair services performed on automobile were performed according to any particular standard of quality. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 566 P2d 1177 (1977)

 

      Misrepresentations of offering prices are not explicitly prohibited by this section. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 566 P2d 1177 (1977)

 

      Seller’s misrepresentation as to title or ownership of automobile was not misrepresentation of “characteristics . . . or qualities” of goods within meaning of this section. Chamberlain v. Jim Fisher Motors, Inc., 282 Or 229, 578 P2d 1225 (1978)

 

      In action for personal injuries sustained in automobile accident in which plaintiff alleged dealer violated this section in representing that car had good brakes, contention of dealer that “private remedy” conferred on consumers by Uniform Trade Practices Act was not intended to create new cause of action for personal injury was correct. Gross-Haentjens v. Tharp, 38 Or App 313, 589 P2d 1209 (1979)

 

      When federal and state law required contractor to inform homeowner of right to rescind contract, representation by contractor that homeowner had no right to rescind was unlawful practice under this section and no proof of justifiable reliance was required. Tri-West Const. v. Hernandez, 43 Or App 961, 607 P2d 1375 (1979), Sup Ct review denied

 

      Furnishing contract for sale of automobile to buyer which indicated that vehicle was new rather than a demonstrator was sufficient representation that vehicle was new under this section even though buyer saw automobile’s odometer reading. Searcy v. Bend Garage Co., 286 Or 11, 592 P2d 558 (1979)

 

      Under former version of this section representation need not be of material nature. Searcy v. Bend Garage Co., 286 Or 11, 592 P2d 558 (1979)

 

      Demurrer to complaint alleging “false or misleading representations” by defendant regarding discount fee in transaction involving government insured loan to purchaser of plaintiffs’ house was properly sustained, because Unfair Trade Practices Act does not apply to loans or extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

 

      Where defendant, a denturist, advertised his services without any indication that he was not a dentist or acting under dentist’s supervision, advertisement constituted unlawful trade practice under this section since at time of advertisement only dentist or denturist under direction of dentist could offer denture services. Terry v. Holden-Dhein Enterprises, Ltd., 48 Or App 763, 618 P2d 7 (1980), Sup Ct review denied

 

      Misrepresentations as to age and amount of use made during sale of hay baler were not covered by this section. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

      Mere fact that State Board closely supervises profession of dentistry does not lead to conclusion that consumers who are measurably damaged by dentist’s actions are prohibited from suing under Trade Practices Act. Investigators, Inc. v. Harvey, 53 Or App 586, 633 P2d 6 (1981)

 

      Where testimony established that value of mobile home plaintiff purchased from defendant would be substantially decreased if it had to be moved, permanency of location was both a “characteristic” and a “quality” under this section and failure to communicate fact that mobile home park where mobile home was located was likely to be sold constituted false representation of characteristic or quality. Caldwell v. Pop’s Homes, Inc., 54 Or App 104, 634 P2d 471 (1981)

 

      There is no requirement that representations constituting willful violation of Act be made to injured customer. Raudebaugh v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

 

      Facts that car sold as new had not been previously titled, licensed or registered and that plaintiff received new car rebate and warranty are factors for trier of fact to consider but are not in themselves determinative of question whether car that had been previously subject to conditional sale and delivery was “new” under Unlawful Trade Practices Act. Weigel v. Ron Tonkin Chevrolet, 66 Or App 232, 673 P2d 574 (1983), aff’d as modified298 Or 127, 690 P2d 488 (1984)

 

      “Likelihood of confusion” exists when consumers are likely to assume that product or service is associated with source other than actual source because of similarities between two sources’ marks or marketing techniques. Shakey’s Inc. v. Covalt, 704 F2d 426 (1983)

 

      Where ordinary purchaser was not likely to confuse antifreeze of plaintiff and defendants, all of same yellow color and packaged in F-style jug, there was no likelihood of injury to plaintiff’s business reputation and no ground for injunctive relief. Union Carbide Corp. v. Fred Meyer, Inc., 619 F Supp 1028 (1985)

 

      Where plaintiff used car buyer brought action for car seller’s violation of this section, plaintiff did not waive his claim for misrepresentation by reason of entry into new agreement with knowledge of fraud when he signed final sales contract because signing of contract was culmination of deceptive transaction and not separate agreement. Teague Motor Company v. Rowton, 84 Or App 72, 733 P2d 93 (1987)

 

      Federal Trade Commission statutes and regulations regarding used motor vehicles do not preempt this section. Hinds v. Paul’s Auto Werkstatt, Inc., 107 Or App 63, 810 P2d 874 (1991), Sup Ct review denied

 

      Where borrowers retain professional services of nonlender to obtain nonbusiness loan, misrepresentation of character, quality or cost of services provided by nonlender is actionable under act. Cullen v. Investment Strategies, Inc., 139 Or App 119, 911 P2d 936 (1996), Sup Ct review denied

 

      Nonlender misrepresentation of loan terms is not actionable under act. Cullen v. Investment Strategies, Inc., 139 Or App 119, 911 P2d 936 (1996), Sup Ct review denied

 

      Failure of merchant to disclose known material defect or nonconformity may be “concurrent with tender or delivery” although occurring at other than precise moment of delivery. Parrott v. Carr Chevrolet, Inc., 156 Or App 257, 965 P2d 440 (1998), aff’d 331 Or 537, 17 P3d 473 (2001)

 

      Where known supply of goods is limited, exclusivity is “characteristic” of goods. Feitler v. The Animation Celection, Inc., 170 Or App 702, 13 P3d 1044 (2000)

 

      Where plaintiff law firm represented creditors in debt collection services and acted as debt collector and made representations to debtors that caused confusion or misunderstanding, this section applies and does not require that confusion or misunderstanding be about plaintiff’s own “real estate, goods or services.” Daniel N. Gordon, PC v. Rosenblum, 361 Or 352, 393 P3d 1122 (2017)

 

LAW REVIEW CITATIONS: 73 OLR 639 (1994)

 

      646.609

 

NOTES OF DECISIONS

 

      To extent term “sales device” contemplates deception, inherent nature of pyramid club is sufficient to make club deceptive sales device. Nielsen v. Myers, 193 Or App 388, 90 P3d 628 (2004), Sup Ct review denied

 

      646.612

 

NOTES OF DECISIONS

 

      Where users of IUDs brought suit against manufacturer on variety of grounds, claiming damages for infertility, private enforcement provision of Oregon Unlawful Trade Practices Act (UTPA) does not provide remedy for personal injuries. Allen v. G.D. Searle and Co., 708 F Supp 1142 (D. Or. 1989)

 

      Federal Trade Commission statutes and regulations regarding used motor vehicles do not preempt ORS 646.608 (1)(t). Hinds v. Paul’s Auto Werkstatt, Inc., 107 Or App 63, 810 P2d 874 (1991), Sup Ct review denied

 

      Professional standards of care permitting, but not requiring, conduct that is alleged to be improper are relevant to demonstrate mental state. State ex rel Frohnmayer v. Freeman, 131 Or App 336, 884 P2d 878 (1994), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Restrictions on the right of a cosmetic therapist to advertise as a “barber,” (1973) Vol 36, p 365

 

LAW REVIEW CITATIONS: 54 OLR 117-160 (1975)

 

      646.618

 

NOTES OF DECISIONS

 

      Court decision upholding Department of Justice investigative demand was special statutory proceeding appealable under [former] ORS 19.010. Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993); Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 863 P2d 1263 (1993)

 

      Department of Justice need not show prior to issuing investigative demand that recipient of investigative demand, or entity being investigated, is engaged in type of business subject to investigation. Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 863 P2d 1263 (1993); State ex rel Kulongoski v. Cunning, 139 Or App 515, 912 P2d 958 (1996)

 

      Professionals subject to agency regulation are not immune from Unlawful Trade Practices Act for business dealings within scope of agency regulation. State ex rel Kulongoski v. Cunning, 139 Or App 515, 912 P2d 958 (1996)

 

      646.632

 

NOTES OF DECISIONS

 

      In action brought by state under this section for violation of Unlawful Trade Practices Act, it was error for trial court to instruct jury that proof of wilful violation of act must be “clear and convincing.” State ex rel Redden v. Discount Fabrics, 289 Or 375, 615 P2d 1034 (1980)

 

LAW REVIEW CITATIONS: 54 OLR 123 (1975)

 

      646.636

 

NOTES OF DECISIONS

 

      Where plaintiff quit employment to enroll in defendant trade school, trial court did not err when it used cost of tuition and lost wages to measure damages. Beckett v. Computer Career Institute, Inc., 120 Or App 143, 852 P2d 840 (1993)

 

      646.638

 

NOTES OF DECISIONS

 

      Under this section, plaintiff need not allege or prove amount of “ascertainable loss,” when minimum claim of $200 is made. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

 

      “Ascertainable,” as used in this section, means capable of being discovered, observed or established. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

 

      A deliberate and calculated misrepresentation by a nonmanagerial employe justified imposition of punitive damages. Allen v. Morgan Drive Away, Inc., 273 Or 614, 542 P2d 896 (1975)

 

      Where seller was aware that automobile had been involved in major accident, but misrepresented that it had suffered only normal wear and tear, imposition of punitive damages was justified. Byers v. Santiam Ford, Inc., 281 Or 411, 574 P2d 1122 (1978)

 

      Under this section, no action lies unless defendant’s conduct is wilful; thus where plaintiff failed to allege wilfulness defendant’s demurrer to complaint should have been allowed. Luedeman v. Tri-West Construction Co., 39 Or App 401, 592 P2d 281 (1979)

 

      Where defendant sold plaintiff mattresses and boxsprings which contained tags indicating items were second-hand, but represented that items were new, it was jury question whether plaintiff had sufficient knowledge to be put on inquiry prior to time he actually saw and read tags. Bodin v. B & L Furniture Co., 42 Or App 731, 601 P2d 848 (1979)

 

      Requirement of this section that complaint be mailed to Attorney General is not jurisdictional defect, but judgment may not be entered until proof of mailing is filed. Bodin v. B & L Furniture Co., 42 Or App 731, 601 P2d 848 (1979)

 

      Where evidence indicated that contractor misrepresented homeowner’s right to rescind contract, award of punitive damages under this section was proper, but misrepresentation concerning status of its license did not give rise to punitive damages. Tri-West Const. v. Hernandez, 43 Or App 961, 607 P2d 1375 (1979), Sup Ct review denied

 

      Under this section, legislative intent is that jury can award punitive damages if it finds deterrence is called for and defendant’s conduct is particularly aggravated. Crooks v. Payless Drug Stores, 285 Or 481, 592 P2d 196 (1979)

 

      Plaintiff’s mere filing of complaint with Consumer Protection Division did not toll limitation period of this section. Myers v. MHI Investments, Inc., 44 Or App 467, 606 P2d 652 (1980), Sup Ct review denied

 

      Where defendant incurred expenses in obtaining a loan to pay plaintiff’s charges for unauthorized repairs, these were an “ascertainable loss” under this section and entitled defendant to recover minimum penalty, punitive damages and attorney fees. Riviera Motors, Inc. v. Higbee, 45 Or App 545, 609 P2d 369 (1980), Sup Ct review denied

 

      Where, inter alia, evidence showed that defendant’s agent was aware plaintiffs were particularly concerned about preserving view which property had; that he knew view was prime reason for price plaintiffs paid; that notwithstanding, he gave plaintiffs unfounded and unsupportable assurances that view would be protected from obstructing buildings; building restrictions were not included in adjacent properties before their sale and plaintiff’s view was obstructed by subsequent construction; actions revealed deliberate and conscious effort to misrepresent and award of punitive damages was proper. Mabin v. Tualatin Development Co., 48 Or App 271, 616 P2d 1196 (1980)

 

      Plaintiff could not recover under this section for defendant’s failure to disclose that they offered denturist services in their advertisement where evidence showed that plaintiff did not know there was a difference between “dentists” and “denturists.” Terry v. Holden-Dhein Enterprises, Ltd., 48 Or App 763, 618 P2d 7 (1980), Sup Ct review denied

 

      Attorney fees are not “ascertainable” loss supporting action for damages. C.A.R. Tow, Inc. v. Corwin, 76 Or App 192, 708 P2d 644 (1985)

 

      Menial agent rule does not apply in claims for punitive damages under this section. Teague Motor Company v. Rowton, 84 Or App 72, 733 P2d 93 (1987)

 

      Where plaintiffs pled “counterclaim” asking for award of attorney fees pursuant to ORS 646.638 (3) in summary judgment appeal, counterclaim constituted separate claim within meaning of ORCP 67B for purpose of judgment from which plaintiffs could appeal. Swagerty v. Joe Romania Chevrolet, 95 Or App 728, 770 P2d 967 (1989), Sup Ct review denied

 

      Trial court was authorized under this section to award attorney fees necessary to defend unlawful trade practices claim found to be frivolous, regardless of whether those fees also were necessary to defend fraud claim. Estate of Wesley E. Smith v. Ware, 307 Or 478, 769 P2d 773 (1989)

 

      Allowing recovery of attorney fees under this provision does not preclude recovery under [former] ORS 18.540. Honeywell v. Sterling Furniture Co., 310 Or 206, 797 P2d 1019 (1990)

 

      Action may be instituted in form of counterclaim to FED action. Hoffer v. Szumski, 129 Or App 7, 877 P2d 128 (1994)

 

      Expense incurred and wages lost due to litigation are not recoverable as damages in claim for unfair trade practices. Hedrick v. Spear, 138 Or App 53, 907 P2d 1123 (1995)

 

      Where complainant reasonably relies upon misrepresentation by defendant, misrepresentation may delay discovery date for limitation of action purposes. McCulloch v. Price Waterhouse LLP, 157 Or App 237, 971 P2d 414 (1998), Sup Ct review denied

 

      On review of jury’s punitive damages award under Unlawful Trade Practices Act, reviewing court must consider: 1) statutory and common law factors that allow award of punitive damages; 2) state’s interest in protecting consumers by punishing violators and deterring violators and others from similar misconduct; 3) reprehensible nature of violator’s conduct; 4) ratio between punitive damages awarded and actual and potential harm caused by violator’s tortious conduct; and 5) range of sanctions provided in statute. Parrott v. Carr Chevrolet, Inc., 331 Or 537, 17 P3d 473 (2001)

 

      Person who spends money to prevent unlawful trade practice does not suffer ascertainable loss of money or property as result of unlawful trade practice. Paul v. Providence Health System-Oregon, 237 Or App 584, 240 P3d 1110 (2010), aff’d 351 Or 587, 273 P3d 106 (2012)

 

LAW REVIEW CITATIONS: 54 OLR 127-130 (1975); 73 OLR 639 (1994)

 

      646.639 to 646.641

 

NOTES OF DECISIONS

 

      Demand letter sent by attorneys to persons using satellite dishes to pirate television programming broadcasts, which demanded $300 to avoid being sued for damages, does not come under the unlawful Debt Collection Practices Act, because there was no “consumer transaction” between dish users and broadcaster of programming. Tipton v. Willamette Subscription Television, 85 Or App 79, 735 P2d 1250 (1987), Sup Ct review denied

 

      646.639

 

NOTES OF DECISIONS

 

      Enforcement provision of Unlawful Collection Law allows aggrieved debtor to recover at least statutorily specified $200 damages on proving some type of injury including emotional upset and, in action arising from debt collection through use of telephone, allegations by plaintiff of being “bothered,” “upset” and “scared” were sufficient to entitle recovery of actual damages or a minimum of $200 under ORS 646.641. Creditors Protective Assn. v. Britt, 58 Or App 230, 648 P2d 414 (1982)

 

      Loan was not consumer transaction where proceeds were used to pay off debts for meat purchased for plaintiffs’ commercial meat business and for cooler cases for that business even though meat was traded to contractors in exchange for goods and services provided in construction of plaintiffs’ home. Rowe v. Bank of the Cascades, 68 Or App 490, 683 P2d 93 (1984)

 

      If defendant bank froze plaintiffs’ account in order to force plaintiffs to pay consumer debt to another bank, conduct would come within provisions of Unlawful Debt Collection Practices Act and it was error to grant defendants’ motion for summary judgment. Rowe v. Bank of the Cascades, 68 Or App 490, 683 P2d 93 (1984)

 

      Where debtor brought action against debt collector alleging violations of Fair Debt Collection Practices Act and Oregon Unlawful Debt Collection Practices Act, district court must consider pendant state claims. Swanson v. Southern Oregon Credit Service, Inc., 869 F2d 1222 (9th Cir. 1988)

 

      As used in this section, “right” does not mean “debt.” Porter v. Hill, 314 Or 86, 838 P2d 45 (1992); Manifold Business and Investment, Inc. v. Wroten, 116 Or App 573, 843 P2d 950 (1992), aff’d 316 Or 338, 851 P2d 580 (1993)

 

      Lawyer did not attempt to enforce “right” or “remedy” by filing civil action to collect alleged debt from client even though part of debt did not exist. Porter v. Hill, 314 Or 86, 838 P2d 45 (1992); Manifold Business and Investment, Inc. v. Wroten, 116 Or App 573, 843 P2d 950 (1992), aff’d 316 Or 338, 851 P2d 580 (1993)

 

      Filing of legal action seeking to recover allegedly unauthorized charges does not constitute collection or attempt to collect interest or charges in excess of actual debt. Hedrick v. Spear, 138 Or App 53, 907 P2d 1123 (1995)

 

      State law is preempted with regard to third-party prelitigation efforts to collect federally guaranteed student loans. Brannan v. United Student Aid Funds, Inc., 94 F3d 1260 (9th Cir. 1996)

 

      646.641

 

NOTES OF DECISIONS

 

      Under this section, plaintiff need not prove loss of money or property to collect minimum amount, but only that plaintiff was “injured.” Creditors Protective Assn. v. Britt, 58 Or App 230, 648 P2d 414 (1982)

 

      Enforcement provision of Unlawful Collection Law allows aggrieved debtor to recover at least statutorily specified $200 damages on proving some type of injury including emotional upset and, in action arising from debt collection through use of telephone, allegations by plaintiff of being “bothered,” “upset” and “scared” were sufficient to entitle recovery of actual damages or a minimum of $200 under this section. Creditors Protective Assn. v. Britt, 58 Or App 230, 648 P2d 414 (1982)

 

      Where debtor brought action against debt collector alleging violations of Fair Debt Collection Practices Act and Oregon Unlawful Debt Collection Practices Act and debt collector requests fees under this section for first time on appeal, debt collector waives issue. Swanson v. Southern Oregon Credit Service, Inc., 869 F2d 1222 (9th Cir. 1988)

 

      Statute of limitations period began at time of first prohibited collection practice, not when seller failed to provide purchased service. Bennett v. Reliable Credit Assn., Inc., 125 Or App 531, 865 P2d 496 (1993)

 

      Claim for unfair debt collection practice is subject to ORS 20.080 pleading amount cap for award of attorney fees. Steele v. A & B Automotive & Towing Service, Inc., 135 Or App 632, 899 P2d 1206 (1995)

 

      For compilation to be trade secret, compilation, not individual items within compilation, must have independent value and not be generally known. Kaib’s Roving R.PH. Agency, Inc. v. Smith, 237 Or App 96, 239 P3d 247 (2010)

 

      646.705 to 646.815

 

ATTY. GEN. OPINIONS: Meetings between members of associations having PUC authority to transport logs, poles and piling and mills and other shippers to jointly agree on rate for transportation, (1981) Vol 41, p 444

 

LAW REVIEW CITATIONS: 55 OLR 537-551 (1976); 56 OLR 331 (1977)

 

      646.715

 

ATTY. GEN. OPINIONS: Participation of hospital owners, administrators, and industry representatives in review of hospital budget information after its collection by agency for purpose of presenting recommendations not anti-competitive, (1978) Vol 38, p 2060

 

      646.725

 

NOTES OF DECISIONS

 

      Where legality of tying arrangement was at issue, possession of exclusive trademark or service mark alone did not create presumption of sufficient economic power over market for tying product. Golden West Insulation, Inc. v. Stardust Investment Corp., 47 Or App 493, 615 P2d 1048 (1980)

 

      In action to enforce land sale contract, defendant could properly raise and sufficiently alleged, as affirmative defense, existence of an illegal tying agreement under this section. King City Realty v. Sunpace, 291 Or 573, 633 P2d 784 (1981)

 

      Where there is no evidence that plaintiff’s exclusion from participation in Network Health Care Plan had adverse effect on competition, plan is not illegal per se and not unreasonable restraint on trade. NW Medical Lab v. Blue Cross and Blue Shield, 97 Or App 74, 775 P2d 863 (1989), aff’d 310 Or 72, 794 P2d 428 (1990)

 

      646.740

 

NOTES OF DECISIONS

 

      Under this section, local nonprofit health care provider offering prescription drugs in kind under its group health insurance policies was subject to state antitrust regulation to the extent free of state insurance regulation. Klamath-Lake Pharmaceutical Assn. v. Klamath Medical Service Bureau, 701 F2d 1276 (1983)

 

      646.872

 

      See annotations under ORS 646A.360.

 

      646.930

 

NOTES OF DECISIONS

 

      Primary purpose of this section is to protect consumers from deceptive fuel pricing by establishing minimum requirements for service station’s posting of fuel prices, and Attorney General’s administrative rules to identify and prohibit “any other unfair or deceptive conduct” regarding display of fuel prices are not prohibited by this section. BP West Coast Products, LLP v. Department of Justice, 284 Or App 723, 396 P3d 244 (2017), Sup Ct review denied

 

      646.990

 

LAW REVIEW CITATIONS: 51 OLR 344 (1972)