Illinois General Assembly - Full Text of HB4676
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Full Text of HB4676  97th General Assembly




State of Illinois
2011 and 2012


Introduced 2/3/2012, by Rep. Esther Golar


New Act

    Creates the Consumer Remedies Protection Act. Provides that consumer adhesion contracts are void as a matter of public policy. Creates a private right of action for consumers whose rights are violated. Authorizes recovery of actual and statutory damages in addition to attorney's fees and costs. Defines terms.

LRB097 19416 JLS 64669 b





HB4676LRB097 19416 JLS 64669 b

1    AN ACT concerning business.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Consumer Remedies Protection Act.
6    Section 5. Purpose, findings, and conclusion.
7    (a) This Act shall be broadly construed to effect its
9    (b) The General Assembly finds that:
10        (1) for many important goods and services consumers are
11    unable to purchase any variant of that good or service
12    without being forced to waive important legal rights;
13        (2) adequate remedies for consumers provide an
14    essential deterrent effect to prevent widespread consumer
15    harm;
16        (3) consumer adhesion contracts severely limit the
17    ability of consumers to seek adequate legal recourse when
18    harmed;
19        (4) companies often use unenforceable exculpatory
20    clauses as a means to deter consumers from bringing valid
21    claims, including by increasing the cost to consumers of
22    vindicating their legal rights; and
23        (5) consumers currently lack an economically viable



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1    method for pursuing recourse when faced with small damages.
2    (c) The General Assembly concludes that this Act is
3necessary to prevent the authors of consumer adhesion contracts
4from immunizing themselves from liability for widespread
5consumer harm.
6    (d) One of the fundamental public policies of this State is
7to protect consumers from widespread harm, and this Act shall
8further that policy.
9    Section 10. Definitions.
10    "Consumer" means an individual who uses, purchases,
11acquires, attempts to purchase or acquire, or is offered or
12furnished goods or services, in part or in whole, for personal,
13family, or household purposes.
14    "Consumer adhesion contract" means any form or standard
15contract with terms and conditions drafted by the non-consumer
16party, presented to consumers without the possibility for
17meaningful negotiation of terms.
18    "Limiting clause" means any contractual provision
19purporting to limit the scope, nature, and effect of remedies
20available to consumers. "Limiting clause" shall be interpreted
21broadly, and shall include, but is not confined to, clauses
22specifying: forum selection, choice of law, waiver or
23limitation of liability, mandatory arbitration, class action
24waiver, and limitation on damages.
25    "Prima facie demonstration" means the production of enough



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1evidence to allow the trier of fact to infer the fact at issue
2and rule in that party's favor without consideration of
3rebuttal evidence.
4    "Public injury" means an action with injurious effect that
6        (1) a violation of a statute that has public interest
7    impact;
8        (2) applied repeatedly to a particular consumer; or
9        (3) aimed at or affects consumers generally.
10    "Substantially superior bargaining power" means the
11ability to draft the terms and conditions of the consumer
12adhesion contract and present the contract to consumers without
13the realistic possibility for negotiation of terms.
14    Section 15. Consumer Contracts.
15    (a) In a dispute arising out of a consumer adhesion
16contract, when a party makes a good faith, prima facie
17demonstration that a party to the contract with substantially
18superior bargaining power has caused public injury, the
19consumer adhesion contract at issue shall be presumed void as a
20matter of public policy.
21    (b) In a dispute arising out of a consumer adhesion
22contract, when it is established that a party to the contract
23with substantially superior bargaining power has caused public
24injury, the consumer adhesion contract at issue shall be
25declared void as a matter of public policy.



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1    (c) Any limiting clause in a consumer adhesion contract
2that, if enforced, would result, on its face or in practice, in
3a consumer having no practical and meaningful remedy shall be
5    Section 20. Private right of action.
6    (a) A consumer whose rights under this Act are violated may
7bring an action against any party benefitting from the illegal
8consumer adhesion contract.
9    (b) Upon a finding that a consumer adhesion contract or
10clause therein is void under to this Act, all consumers subject
11to the consumer adhesion contract shall be entitled to the
12greater of:
13        (1) the consumer's actual damages; or
14        (2) statutory damages of $10 each, subject to Section
15    25 of this Act.
16    (c) A consumer who prevails in any action brought under to
17this Act shall be entitled to his or her reasonable attorney's
18fees and costs.
19    Section 25. Safe harbor. If a party, within 30 days after
20the initiation of an action, waives those contractual
21provisions made unlawful under this Act, the statutory damages
22prescribed in subsection (b) of Section 20 shall not be
23awarded. For purposes of this Section, the initiation of an
24action includes the filing of a court case, the initiation of



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1arbitration, or a formal demand to waive the offending
2contractual provisions.
3    Section 30. Construction. Nothing in this Act shall be
4construed to limit any other consumer right under state or
5federal law.
6    Section 35. Severability. The provisions of this Act are
7severable under Section 1.31 of the Statute on Statutes.