Follow Up on Colorado Senate Bill 11-068: Unwarranted Changes to the Colorado Consumer Protection Act

In a prior Colorado Construction Litigation blog entry, we presented concerns with Senate Bill 11-068, which seeks to eliminate the significant public impact component of claims under the Colorado Consumer Protection Act (the “CCPA”). On February 22, 2011, the Senate passed the bill in a 19 to 15 vote. As the bill made its way through the Senate, it was amended to remove the provisions that would have granted the Attorney General the unilateral power to add to the laundry list of acts that constitute deceptive trade practices. While the original version of the bill would have created a rebuttable presumption that a significant public impact occurred where a plaintiff offers evidence of a deceptive trade practice, recent revisions completely do away with the element of a significant public impact in a CCPA cause of action. The revised SB11-68 reads in part:

6-1-113.5. Private cause of action – elements – legislative declaration.
(1) TO PREVAIL IN A CLAIM BROUGHT UNDER SECTION 6-1-113, A PLAINTIFF SHALL ESTABLISH THAT:
(a) THE DEFENDANT ENGAGED IN AN UNFAIR OR DECEPTIVE TRADE PRACTICE;
(b) THE CHALLENGED PRACTICE OCCURRED IN THE COURSE OF THE DEFENDANT’S BUSINESS, VOCATION, OR OCCUPATION;
(c) THE PLAINTIFF SUFFERED INJURY IN FACT TO A LEGALLY PROTECTED INTEREST; AND
(d) THE CHALLENGED PRACTICE CAUSED THE PLAINTIFF’S INJURY.

(2) THE GENERAL ASSEMBLY DECLARES THAT ITS PURPOSE IN CREATING THIS SECTION IS TO ELIMINATE THE REQUIREMENT, ARTICULATED BY THE COLORADO SUPREME COURT IN HALL V. WALTER, 969 P.2D 224 (1998), THAT, TO PROVE A PRIVATE CAUSE OF ACTION UNDER THIS ARTICLE, A PLAINTIFF MUST ESTABLISH THAT A DEFENDANT’S CHALLENGED PRACTICE SIGNIFICANTLY IMPACTS THE PUBLIC AS ACTUAL OR POTENTIAL CONSUMERS OF THE DEFENDANT’S GOODS, SERVICES, OR PROPERTY.