Chapter 646 — Trade Practices and Antitrust Regulation

2011 EDITION

TRADE PRACTICES AND ANTITRUST REGULATION

TRADE REGULATIONS AND PRACTICES

PRICE DISCRIMINATION IN COMMERCE AND FOOD COMMERCE

646.010 Designation and scope of ORS 646.010 to 646.180

646.020 Definitions and explanations

646.030 Application to cooperative associations

646.040 Price discrimination prohibited; price differentials

646.050 Establishing prima facie case of discrimination; justification of discrimination

646.060 Commissions and allowances

646.070 Special payments to customers

646.080 Special services to customers

646.090 Inducing or receiving price discrimination prohibited

646.130 Cost surveys as evidence

646.140 Enjoining violations; treble damages; attorney fees; limitation on commencement of actions

646.150 Action for damages

646.160 Presumption of damages

646.170 Requiring defendant to testify

646.180 Illegal contracts

TRADE SECRETS

646.461 Definitions for ORS 646.461 to 646.475

646.463 Enjoining misappropriation; payment of royalties; affirmative acts

646.465 Damages for misappropriation

646.467 Attorney fees

646.469 Preservation of trade secret by court; methods

646.471 Limitation on commencement of action

646.473 Conflicting tort, restitution or other law providing civil remedies; exclusions for certain other remedies; limited immunity for public bodies and officers, employees and agents

646.475 Application and construction of ORS 646.461 to 646.475; short title; effect of invalidity

PRODUCERS’ COOPERATIVE BARGAINING ASSOCIATIONS

646.515 Definitions for ORS 646.515 to 646.545

646.525 Cooperative bargaining associations authorized

646.535 Unfair trade practices prohibited; exception

646.545 Remedy for unfair trade practices; attorney fees

TELEPHONE SOLICITATION

(Registration of Telephonic Sellers)

646.551 Definitions for ORS 646.551 to 646.557

646.553 Registration of telephonic sellers; fee; Attorney General as attorney for service of process; rules

646.555 Burden of proof for person claiming exemption

646.557 Required disclosures by telephonic seller

646.559 Rules

(Unlawful Telephone Solicitations)

646.561 Definitions for ORS 646.561 to 646.565

646.563 Telephone solicitation of party who states desire not to be called

646.565 Notice of provisions of ORS 646.561 and 646.563; rulemaking by Public Utility Commission

646.567 Definitions for ORS 646.567 to 646.578

646.568 Findings and purpose

646.569 Prohibition on telephone solicitation of party whose name is included on list described in ORS 646.574 or on federal registry designated under ORS 646.572

646.572 Administration of telephone solicitation program through contract or by designation of federal registry; contract provisions; duty of Attorney General

646.574 List of persons who do not wish to receive telephone solicitations; fee; disclosure of list; complaints

646.576 Rules

646.578 Notice of provisions of ORS 646.567 to 646.578; rulemaking by Public Utility Commission

UNLAWFUL TRADE PRACTICES

646.605 Definitions for ORS 646.605 to 646.652

646.607 Unlawful business, trade practices

646.608 Additional unlawful business, trade practices; proof; rules

646.609 “Pyramid club” and “investment” defined

646.611 Information required to be given by telephone or door to door seller to potential customer

646.612 Application of ORS 646.607 and 646.608

646.618 Investigative demand; petition to modify

646.622 Method of serving investigative demand

646.626 Effect of failure to obey investigative demand

646.632 Enjoining unlawful trade practices; assurance of voluntary compliance; attorney fees

646.633 Action by prosecuting attorney prohibited without request of Director of Department of Consumer and Business Services

646.636 Remedial power of court

646.638 Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions

646.639 Unlawful collection practices

646.641 Civil action for unlawful collection practice; damages; attorney fees; time for commencing action

646.642 Civil penalties

646.643 Applicability of ORS 646.639

646.644 Free offer; required disclosures; limitations on financial obligation incurred by consumer; enforcement; exception

646.646 Loss of license or franchise by person violating injunction

646.647 Unlawful use of recording group name; exceptions

646.648 Unlawful practice by manufactured dwelling dealer

646.649 Late fees on delinquent cable service accounts; amount; disclosure; notice

646.651 Contest and sweepstakes solicitations; required disclosures; prohibited representations

646.652 District attorney’s reports to Attorney General; filing of voluntary compliances

646.656 Remedies supplementary to existing statutory or common law remedies

ANTITRUST LAW

646.705 Definitions for ORS 136.617 and 646.705 to 646.805

646.715 Declaration of purpose

646.725 Prohibited acts

646.730 Monopolies prohibited

646.735 Exemption for coordinated care organizations; state action immunity; permitted activities

646.736 Public policy; certain cooperative activities not unlawful

646.737 Exemption for negotiations governing sale price of Oregon blackberries; supervision by Director of Agriculture; rules; fees

646.738 Exemption for negotiations governing price for sale of grass seed; supervision by Director of Agriculture; rules; fees

646.739 Exemption for negotiations governing season starting price for sale of Oregon seafood; supervision by Director of Agriculture; rules; fees

646.740 Permitted activities

646.745 Joint operation of Memorial Coliseum and Arena in Portland; definitions; legislative findings and goals; state supervision

646.750 Investigative demand by Attorney General; petition to modify

646.760 Civil penalties; attorney fees; mitigation

646.770 Equitable remedies; attorney fees

646.775 Actions by Attorney General; damages; attorney fees

646.780 Recovery of treble damages; exception; recovery of fees and costs; action under federal law as bar; action parens patriae by Attorney General

646.790 Venue

646.800 Time of commencing action

646.805 Effect of prior final judgment or decree

646.815 Criminal prosecutions; compromise of criminal charges; effect of prior action seeking civil penalties

646.821 Taking testimony for investigative demand

646.823 Attendance of Attorney General at grand jury proceedings

646.826 Counsel for persons testifying; grounds for refusing to answer questions; compelling testimony; exclusion of spectators

646.831 Fees and mileage for persons testifying

646.836 Confidential status of investigative material; permitted disclosures; use of information in other proceedings; return of investigative material

PRICE COMPARISON ADVERTISING

646.881 Definitions for ORS 646.881 to 646.885

646.883 Price comparison in advertisement prohibited; exceptions

646.885 Use of terms in advertisement containing price comparison

VEHICLE FUELS

(Definitions)

646.905 Definitions for ORS 646.910 to 646.923

(Blended Gasoline)

646.910 Sale of gasoline blended with alcohol prohibited unless mixture meets federal specifications or requirements

646.911 Sale of gasoline with oxygenate other than ethanol

646.912 Study and monitoring of ethanol production, use and sales; notice required

646.913 Limitations on gasoline sales; requirements for ethanol content in gasoline; rules

646.915 Identification of blended gasoline required; method of identification

646.920 Wholesale dealer; declaration of contents required

(Biodiesel)

646.921 Study and monitoring of biodiesel production, use and sales; notice to dealers of biodiesel production capacity; restrictions on sale of diesel fuel

646.922 Limitations on sale of diesel fuel following notice; requirements for biodiesel content; exception for certain additives; rules

646.923 Retention of certificate of analysis; powers of Director of Agriculture; biodiesel testing; rules

646.925 Enforcement; rules

(Motor Vehicle Fuel Prices)

646.930 Motor vehicle fuel prices; requirements for display

646.932 Posting of amount per gallon of gasoline that is federal, state and local tax; furnishing of information by Department of Transportation

646.935 Diesel fuel sales; price discrimination

(Octane Ratings)

646.945 Definitions for ORS 646.947 to 646.963

646.947 Prohibited activities

646.949 Signs identifying octane rating

646.951 Testing of motor vehicle fuel

646.953 Orders of Director of Agriculture

646.955 Records required

646.957 Rules

646.959 Annual fee for metering instrument or device

646.961 Motor Vehicle Fuel Inspection Program Account

646.963 Civil penalties

PENALTIES

646.990 Penalties

PRICE DISCRIMINATION IN COMMERCE AND FOOD COMMERCE

646.010 Designation and scope of ORS 646.010 to 646.180. ORS 646.010 to 646.180 shall be known and designated as the Anti-price Discrimination Law; and the inhibitions against discrimination in those sections shall embrace any scheme of special concessions or rebates, any collateral contracts or agreements or any device of any nature whereby discrimination is, in substance or fact, effected in violation of the spirit and intent of ORS 646.010 to 646.180.

646.020 Definitions and explanations. (1) When used in ORS 646.010 to 646.180, unless the context otherwise requires:

(a) “Commerce” means trade or commerce within this state, exclusive of food commerce.

(b) “Food commerce” means trade or commerce within this state in articles of food for human consumption and such other articles as usually are sold in food stores in connection with articles of food for human consumption. In the case of persons selling items other than items of food commerce, the term “food commerce” is restricted solely to such items of food commerce as are defined in this paragraph.

(c) “Person” means individual, corporation, partnership, association, joint stock company, business trust or unincorporated organization.

(d) “Price” means the net price to the buyer after the deduction of all discounts, rebates, or other price concessions paid or allowed by the seller.

(e) “Replacement cost” means the cost per unit at the retail outlet at which the merchandise sold or offered for sale could have been bought by the seller at any time within 10 days prior to the date of sale or the date upon which it is offered for sale by the seller, if bought in the same quantities as the seller’s usual or customary purchase of such merchandise, after deducting all discounts, rebates or other price concessions.

(f) “Retailer in food commerce” means any person engaged in food commerce who sells directly to the consumer for use.

(g) “Wholesaler in food commerce” means any person engaged in food commerce other than a retailer or producer, manufacturer or processor.

(2) As used in ORS 646.010 to 646.180, “vendor” includes any person who performs work upon, renovates, alters or improves any personal property belonging to another person.

646.030 Application to cooperative associations. ORS 646.010 to 646.180 shall not prevent a cooperative association from returning to its members, producers or consumers the whole, or any part of, the net earnings or surplus resulting from its trading operations, in proportion to their purchases or sales from, to or through the association.

646.040 Price discrimination prohibited; price differentials. (1) It is unlawful for any person engaged in commerce or food commerce, or both, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities, or services or output of a service trade, of like grade and quality or to discriminate in price between different sections, communities or cities or portions thereof or between different locations in sections, communities, cities or portions thereof in this state, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

(2) Subsection (1) of this section does not prevent:

(a) Differentials which make only due allowance for differences in the cost of manufacture, sale or delivery, resulting from the differing methods or quantities in which the commodities are sold or delivered to purchasers.

(b) Persons engaged in selling goods, wares or merchandise, or service or output of a service trade, in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

(c) Price changes from time to time where in response to changing conditions affecting the market for or marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

646.050 Establishing prima facie case of discrimination; justification of discrimination. Upon proof being made, in any suit or other proceeding in which any violation of ORS 646.010 to 646.180 is at issue, that there has been discrimination in price, or in services or facilities furnished, or in payment for services or facilities rendered or to be rendered, the burden of rebutting the prima facie case thus made by showing justification is upon the person charged with the violation; but this section does not prevent a seller rebutting the prima facie case so made by showing that the lower price of the seller, or the payment for or furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor or the services or facilities furnished by a competitor.

646.060 Commissions and allowances. No person engaged in commerce or food commerce, or both, in the course of such commerce, shall pay, grant, receive or accept anything of value as a commission, brokerage or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, service, or output of a service trade, or merchandise. In all such transactions of sale and purchase, neither party to the transaction shall pay or grant anything of value as a commission, brokerage or other compensation, or any allowance or discount in lieu thereof, to the other party to the transaction or to any agent, representative or other intermediary therein, where such agent, representative or other intermediary is acting for or in behalf of or is subject to the direct or indirect control of the other party to the transaction.

646.070 Special payments to customers. No person engaged in commerce or food commerce, or both, in the course of such commerce, shall pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale or offering for sale of any products or commodities manufactured, service or output of a service trade, sold or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities, or service, or output of service trades.

646.080 Special services to customers. No person engaged in commerce or food commerce, or both, in the course of such commerce, shall discriminate in favor of one purchaser against another purchaser or purchasers of a commodity, or service, or output of a service trade, bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of any services or facilities connected with the processing, handling, sale or offering for sale of such commodity, or service, or output of a service trade, purchased upon terms not accorded to all purchasers on proportionally equal terms.

646.090 Inducing or receiving price discrimination prohibited. No person engaged in commerce or food commerce, or both, in the course of such commerce, shall knowingly induce or receive a discrimination in price which is prohibited by ORS 646.040 to 646.080.

646.100 [Amended by 1963 s.s. c.2 §3; repealed by 1975 c.255 §17]

646.105 [1963 s.s. c.2 §2; repealed by 1975 c.255 §17]

646.110 [Repealed by 1975 c.255 §17]

646.120 [Repealed by 1975 c.255 §17]

646.130 Cost surveys as evidence. Where a particular trade or industry, of which the person, firm or corporation complained against is a member, has an established cost survey for the locality and vicinity in which the offense is committed, such cost survey is competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of ORS 646.010 to 646.180.

646.140 Enjoining violations; treble damages; attorney fees; limitation on commencement of actions. (1) Any person injured by any violation, or who will suffer injury from any threatened violation, of ORS 646.010 to 646.180 may maintain an action in any court of general equitable jurisdiction of this state, to prevent, restrain or enjoin the violation or threatened violation. If in such action, a violation or threatened violation of ORS 646.010 to 646.180 is established, the court shall enjoin and restrain or otherwise prohibit such violation or threatened violation, and the plaintiff in the action is entitled to recover three-fold the damages sustained by the plaintiff. Except as provided in subsection (2) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

(2) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (1) of this section if the action under this section is maintained as a class action pursuant to ORCP 32.

(3) Actions brought under this section shall be commenced within four years from the date of the injury. [Amended by 1981 c.897 §75; 1983 c.467 §2; 1995 c.696 §33]

646.150 Action for damages. If no injunctive relief is sought or required, any person injured by any violation of ORS 646.010 to 646.180 may maintain an action for damages alone in any court of general jurisdiction in this state. The measure of damages in such action shall be the same as that prescribed by ORS 646.140.

646.160 Presumption of damages. In any proceedings instituted or action brought in pursuance of the provisions of ORS 646.140 or 646.150, the plaintiff, upon proof that the plaintiff has been unlawfully discriminated against by the defendant, shall conclusively be presumed to have sustained damages equal to the monetary amount or equivalent of the unlawful discrimination; and, in addition thereto, may establish such further damages, if any, as the plaintiff may have sustained as a result of the discrimination.

646.170 Requiring defendant to testify. Any defendant in an action brought under the provisions of ORS 646.140 to 646.160 may be required to testify under the provisions of ORCP 65 or by deposition. In addition, the books and records of any such defendant may be brought into court and introduced, by reference, into evidence. No information so obtained may be used against the defendant as a basis for a criminal prosecution under ORS 646.990 (1). [Amended by 1979 c.284 §184; 1981 c.898 §52]

646.180 Illegal contracts. Any contract, express or implied, made by any person in violation of any of the provisions of ORS 646.010 to 646.180 is an illegal contract and no recovery thereon shall be had.

646.185 [Formerly 646.200; 2001 c.639 §1; renumbered 646A.010 in 2007]

646.187 [1999 c.194 §3; renumbered 646A.012 in 2007]

646.189 [1999 c.194 §4; 2001 c.639 §2; 2003 c.576 §528; renumbered 646A.014 in 2007]

646.191 [1999 c.194 §5; renumbered 646A.016 in 2007]

646.193 [1999 c.194 §6; renumbered 646A.018 in 2007]

646.195 [1999 c.194 §7; renumbered 646A.020 in 2007]

646.200 [1989 c.273 §1; 1993 c.645 §§1,1a; 1995 c.713 §1; 1995 c.759 §1; 1997 c.132 §5; 1997 c.631 §507; 1999 c.194 §1; renumbered 646.185 in 1999]

646.202 [1989 c.273 §2; 1993 c.645 §2; 1995 c.713 §7; repealed by 1997 c.132 §8]

646.203 [1997 c.132 §1; repealed by 1999 c.194 §13]

646.204 [1989 c.273 §3; 1993 c.645 §§3,3a; 1995 c.79 §327; 1995 c.713 §2; repealed by 1997 c.132 §8]

646.205 [1997 c.132 §2; repealed by 1999 c.194 §13]

646.206 [1989 c.273 §4; 1995 c.713 §8; repealed by 1997 c.132 §8]

646.207 [1997 c.132 §3; repealed by 1999 c.194 §13]

646.208 [1989 c.273 §5; 1995 c.713 §3; repealed by 1997 c.132 §8]

646.209 [1997 c.132 §4; repealed by 1999 c.194 §13]

646.210 [Repealed by 1971 c.744 §27]

646.212 [1989 c.273 §6; 1993 c.645 §4; 1995 c.713 §4; repealed by 1997 c.132 §8]

646.214 [1993 c.645 §6; 1995 c.713 §9; repealed by 1997 c.132 §8]

646.216 [1993 c.645 §§7,7a; 1995 c.713 §5; repealed by 1997 c.132 §8]

646.217 [1995 c.713 §11; repealed by 1997 c.132 §8]

646.218 [1993 c.645 §§8,9; repealed by 1997 c.132 §8]

646.220 [Repealed by 1971 c.744 §27]

646.221 [1991 c.465 §1; renumbered 646A.340 in 2007]

646.225 [1991 c.465 §2; renumbered 646A.342 in 2007]

646.229 [1991 c.465 §3; 2005 c.384 §1; renumbered 646A.344 in 2007]

646.230 [Repealed by 1971 c.744 §27]

646.235 [1991 c.465 §4; renumbered 646A.346 in 2007]

646.240 [1991 c.465 §5; 1995 c.696 §34; 2005 c.384 §2; renumbered 646A.348 in 2007]

646.245 [1993 c.283 §1; renumbered 646A.120 in 2007]

646.247 [1993 c.283 §2; renumbered 646A.122 in 2007]

646.249 [1993 c.283 §3; renumbered 646A.124 in 2007]

646.251 [1993 c.283 §4; renumbered 646A.126 in 2007]

646.253 [1993 c.283 §5; renumbered 646A.128 in 2007]

646.255 [1993 c.283 §§6,7; renumbered 646A.130 in 2007]

646.257 [1993 c.283 §8; renumbered 646A.132 in 2007]

646.259 [1993 c.283 §9; renumbered 646A.134 in 2007]

646.260 [Repealed by 1975 c.255 §17]

646.263 [1995 c.801 §1; renumbered 646A.150 in 2007]

646.265 [1995 c.801 §2; renumbered 646A.152 in 2007]

646.267 [1995 c.801 §3; 2005 c.395 §1; renumbered 646A.154 in 2007]

646.269 [1995 c.801 §4; renumbered 646A.156 in 2007]

646.270 [Repealed by 1975 c.255 §17]

646.271 [1995 c.801 §5; renumbered 646A.158 in 2007]

646.273 [1995 c.801 §9; renumbered 646A.160 in 2007]

646.275 [1995 c.801 §10; renumbered 646A.162 in 2007]

646.277 [1995 c.801 §11; renumbered 646A.164 in 2007]

646.279 [1995 c.801 §12; renumbered 646A.166 in 2007]

646.280 [Repealed by 1975 c.255 §17]

646.281 [1995 c.801 §13; renumbered 646A.168 in 2007]

646.283 [1995 c.801 §14; renumbered 646A.170 in 2007]

646.285 [1995 c.801 §15; renumbered 646A.172 in 2007]

646.290 [Repealed by 1975 c.255 §17]

646.291 [1997 c.72 §1; renumbered 646A.280 in 2007]

646.293 [1997 c.72 §2; renumbered 646A.282 in 2007]

646.295 [1973 c.491 §2; repealed by 1975 c.255 §17]

646.296 [1997 c.72 §3; renumbered 646A.284 in 2007]

646.298 [1997 c.72 §4; renumbered 646A.286 in 2007]

646.300 [1997 c.72 §5; renumbered 646A.288 in 2007]

646.302 [1997 c.72 §6; renumbered 646A.290 in 2007]

646.310 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.315 [1983 c.469 §1; 1985 c.16 §468; 1987 c.476 §1; 1989 c.171 §74; 1989 c.202 §1; 2007 c.382 §1; renumbered 646A.400 in 2007]

646.320 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.325 [1983 c.469 §2; 1987 c.476 §6; renumbered 646A.402 in 2007]

646.330 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.335 [1983 c.469 §3; 1987 c.476 §2; renumbered 646A.404 in 2007]

646.340 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.345 [1983 c.469 §4; renumbered 646A.406 in 2007]

646.350 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.355 [1983 c.469 §5; renumbered 646A.408 in 2007]

646.357 [1987 c.476 §4; renumbered 646A.410 in 2007]

646.359 [1987 c.476 §5; 1995 c.618 §96; 1999 c.346 §1; renumbered 646A.412 in 2007]

646.360 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.361 [1987 c.476 §7; renumbered 646A.414 in 2007]

646.365 [1983 c.469 §6; renumbered 646A.416 in 2007]

646.370 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]

646.375 [1983 c.469 §7; renumbered 646A.418 in 2007]

646.380 [1993 c.582 §1; renumbered 646A.250 in 2007]

646.382 [1993 c.582 §§2,2a; 1997 c.631 §509; 2001 c.300 §77; 2001 c.377 §44; 2007 c.319 §30; renumbered 646A.252 in 2007]

646.384 [1993 c.582 §3; 2001 c.289 §1; renumbered 646A.254 in 2007]

646.386 [1993 c.582 §4; 1997 c.631 §510; 2005 c.21 §2; renumbered 646A.256 in 2007]

646.388 [1993 c.582 §5; 1997 c.631 §511; renumbered 646A.258 in 2007]

646.390 [1993 c.582 §6; 1997 c.631 §512; renumbered 646A.260 in 2007]

646.392 [1993 c.582 §7; renumbered 646A.262 in 2007]

646.394 [1993 c.582 §8; renumbered 646A.264 in 2007]

646.396 [1993 c.582 §§9,10; 2005 c.338 §7; renumbered 646A.266 in 2007]

646.397 [2005 c.338 §5; renumbered 646A.268 in 2007]

646.398 [2005 c.338 §6; renumbered 646A.270 in 2007]

646.400 [2001 c.969 §1; 2003 c.655 §80; renumbered 646A.050 in 2007]

646.402 [2001 c.969 §2; 2003 c.655 §81; 2005 c.41 §§7,8; renumbered 646A.052 in 2007]

646.404 [2001 c.969 §3; renumbered 646A.054 in 2007]

646.410 [Repealed by 1975 c.255 §17]

646.415 [1983 c.551 §1; 1993 c.406 §1; 2003 c.466 §1; renumbered 646A.300 in 2007]

646.419 [1989 c.404 §2; renumbered 646A.302 in 2007]

646.420 [Repealed by 1975 c.255 §17]

646.425 [1983 c.551 §2; 1991 c.83 §5; 1993 c.406 §6; 2003 c.466 §2; renumbered 646A.304 in 2007]

646.430 [Repealed by 1975 c.255 §17]

646.435 [1983 c.551 §3; 1993 c.406 §7; renumbered 646A.306 in 2007]

646.440 [Repealed by 1975 c.255 §17]

646.445 [1983 c.551 §4; 1993 c.406 §8; 2003 c.466 §3; renumbered 646A.308 in 2007]

646.447 [1993 c.406 §3; 2003 c.466 §4; renumbered 646A.310 in 2007]

646.449 [1993 c.406 §4; 2003 c.466 §5; renumbered 646A.312 in 2007]

646.450 [Repealed by 1975 c.255 §17]

646.451 [1993 c.406 §5; 2003 c.466 §6; 2003 c.598 §47a; renumbered 646.459 in 2003]

646.452 [2003 c.466 §8; renumbered 646A.314 in 2007]

646.453 [2003 c.466 §10; renumbered 646A.316 in 2007]

646.454 [2003 c.466 §9; renumbered 646A.318 in 2007]

646.455 [1983 c.551 §5; repealed by 2003 c.466 §12]

646.456 [2003 c.466 §11; renumbered 646A.320 in 2007]

646.459 [Formerly 646.451; renumbered 646A.322 in 2007]

646.460 [Repealed by 1975 c.255 §17]

TRADE SECRETS

646.461 Definitions for ORS 646.461 to 646.475. As used in ORS 646.461 to 646.475, unless the context otherwise requires:

(1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means. Reverse engineering and independent development alone shall not be considered improper means.

(2) “Misappropriation” means:

(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;

(b) Disclosure or use of a trade secret of another without express or implied consent by a person who used improper means to acquire knowledge of the trade secret;

(c) Disclosure or use of a trade secret of another without express or implied consent by a person who, before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake; or

(d) Disclosure or use of a trade secret of another without express or implied consent by a person, who at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was:

(A) Derived from or through a person who had utilized improper means to acquire it;

(B) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(C) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use.

(3) “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency or any other legal or commercial entity.

(4) “Trade secret” means information, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. [1987 c.537 §2]

646.463 Enjoining misappropriation; payment of royalties; affirmative acts. (1) Actual or threatened misappropriation may be temporarily, preliminarily or permanently enjoined. Upon application to the court, an injunction shall be vacated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

(2) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of the misappropriation that renders a prohibitive injunction inequitable.

(3) In appropriate circumstances, the court may order affirmative acts to protect a trade secret. [1987 c.537 §3]

646.465 Damages for misappropriation. (1) A complainant is entitled to recover damages adequate to compensate for misappropriation, unless a material and prejudicial change of position by a defendant prior to acquiring knowledge or reason to know of the misappropriation renders a monetary recovery inequitable.

(2) Damages may include both the actual loss caused by misappropriation, and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss, but shall not be less than a reasonable royalty for the unauthorized disclosure or use of a trade secret.

(3) Upon a finding of willful or malicious misappropriation, punitive damages may be awarded in an amount not exceeding twice any award made under subsections (1) and (2) of this section. [1987 c.537 §4]

646.467 Attorney fees. The court may award reasonable attorney fees to the prevailing party if:

(1) A claim of misappropriation is made in bad faith;

(2) A motion to terminate an injunction is made or resisted in bad faith; or

(3) Willful or malicious misappropriation is found by the court or jury. [1987 c.537 §5]

646.469 Preservation of trade secret by court; methods. In any action brought under ORS 646.461 to 646.475, the court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in camera hearings, sealing the records of the action or ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. [1987 c.537 §6]

646.471 Limitation on commencement of action. An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim. [1987 c.537 §7]

646.473 Conflicting tort, restitution or other law providing civil remedies; exclusions for certain other remedies; limited immunity for public bodies and officers, employees and agents. (1) Except as provided in subsection (2) of this section, ORS 646.461 to 646.475 supersede conflicting tort, restitution or other law of Oregon providing civil remedies for misappropriation of a trade secret.

(2) ORS 646.461 to 646.475 shall not affect:

(a) Contractual remedies, whether or not based upon misappropriation of a trade secret;

(b) Other civil remedies that are not based upon misappropriation of a trade secret;

(d) Any defense, immunity or limitation of liability afforded public bodies, their officers, employees or agents under ORS 30.260 to 30.300.

(3) Notwithstanding any other provision in ORS 646.461 to 646.475, public bodies and their officers, employees and agents are immune from any claim or action for misappropriation of a trade secret that is based on the disclosure or release of information in obedience to or in good faith reliance on any order of disclosure issued pursuant to ORS 192.410 to 192.490 or on the advice of an attorney authorized to advise the public body, its officers, employees or agents. [1987 c.537 §8]

646.475 Application and construction of ORS 646.461 to 646.475; short title; effect of invalidity. (1) ORS 646.461 to 646.475 shall be applied and construed to effectuate their general purpose to make uniform the law with respect to the subject of ORS 646.461 to 646.475 among states enacting them.

(2) ORS 646.461 to 646.475 may be cited as the Uniform Trade Secrets Act.

(3) If any provision of ORS 646.461 to 646.475 or its application to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of ORS 646.461 to 646.475 which can be given effect without the invalid provision or application, and to this end the provisions of ORS 646.461 to 646.475 are severable. [1987 c.537 §§9,10,11]

646.482 [1997 c.562 §1; 1999 c.81 §1; 2007 c.70 §281; renumbered 646A.460 in 2007]

646.484 [1997 c.562 §2; renumbered 646A.462 in 2007]

646.486 [1997 c.562 §3; renumbered 646A.464 in 2007]

646.488 [1997 c.562 §4; renumbered 646A.466 in 2007]

646.490 [1997 c.562 §5; renumbered 646A.468 in 2007]

646.492 [1997 c.562 §6; renumbered 646A.470 in 2007]

646.494 [1997 c.562 §7; renumbered 646A.472 in 2007]

646.496 [1997 c.562 §8; renumbered 646A.474 in 2007]

646.498 [1997 c.562 §9; 2001 c.542 §8; 2003 c.14 §392; renumbered 646A.476 in 2007]

646.500 [2001 c.767 §1; renumbered 646A.500 in 2007]

646.501 [2001 c.767 §2; renumbered 646A.502 in 2007]

646.502 [2001 c.767 §3; renumbered 646A.504 in 2007]

646.503 [2001 c.767 §§4,8; renumbered 646A.506 in 2007]

646.504 [2001 c.767 §§5,9; renumbered 646A.508 in 2007]

646.505 [2001 c.767 §6; renumbered 646A.510 in 2007]

646.506 [2001 c.767 §7; renumbered 646A.512 in 2007]

646.507 [2001 c.767 §10; renumbered 646A.514 in 2007]

646.510 [Repealed by 1953 c.391 §2]

PRODUCERS’ COOPERATIVE BARGAINING ASSOCIATIONS

646.515 Definitions for ORS 646.515 to 646.545. As used in ORS 646.515 to 646.545, unless the context requires otherwise:

(1) “Agricultural commodity” means any and all agricultural, horticultural, viticultural and vegetable products produced in this state, either in their natural state or as processed by a producer for the purpose of marketing such product, including bees and honey, but not including timber or timber products.

(2) “Cooperative bargaining association” means:

(a) An association of producers formed or operated pursuant to ORS chapter 62 with the purpose of group bargaining with respect to the sale of any agricultural commodity or Oregon seafood commodity.

(b) A fishermen’s marketing association or fishermen’s trade association organized under ORS chapter 62 or 65.

(3)(a) “Dealer” means, except as provided in paragraph (b) of this subsection, any person or agent of the person who purchases or contracts to purchase an agricultural commodity or Oregon seafood commodity from a producer or agent of the producer, for the purpose of packing, processing or marketing such commodity.

(b) “Dealer” does not include any organization operating as an agricultural cooperative or Oregon seafood harvester cooperative.

(4) “Oregon seafood commodity” means any food fish as defined in ORS 506.011 over which the State Fish and Wildlife Commission has jurisdiction.

(5) “Producer” means a person engaged in the business of producing agricultural commodities or harvesting Oregon seafood commodities. [1963 c.514 §1; 1997 c.296 §1; 1997 c.393 §1; 2003 c.487 §4]

646.520 [Repealed by 1953 c.391 §2]

646.525 Cooperative bargaining associations authorized. Producers shall have the right to join voluntarily and belong to cooperative bargaining associations. [1963 c.514 §2]

646.530 [Repealed by 1953 c.391 §2]

646.535 Unfair trade practices prohibited; exception. (1) A dealer may not knowingly engage in the following unfair trade practices:

(a) Interfere with, restrain, coerce or boycott a producer in the exercise of the rights guaranteed pursuant to ORS 646.525;

(b) Discriminate against a producer with respect to price or other terms of purchase of raw agricultural commodities or Oregon seafood commodities, by reason of the producer’s membership in or contract with cooperative bargaining associations; or

(c) Pay or loan money, or give any other thing of value to a producer as an inducement or reward for refusing to or ceasing to belong to a cooperative bargaining association.

(2) A blackberry dealer, perennial ryegrass seed, annual ryegrass seed or tall fescue seed dealer or Oregon seafood commodity dealer who participates in negotiating committee activities described in ORS 646.737, 646.738 or 646.739 does not violate subsection (1) of this section. [1963 c.514 §3; 1969 c.165 §1; 2001 c.142 §5; 2003 c.487 §5; 2005 c.290 §2; 2009 c.241 §4]

646.540 [Repealed by 1953 c.391 §2]

646.545 Remedy for unfair trade practices; attorney fees. (1) In addition to any other remedies provided by law, any producer injured by a violation of ORS 646.535 may maintain an action for damages sustained by such producer.

(2) The prevailing party in any action brought pursuant to subsection (1) of this section shall be allowed, in addition to the costs and disbursements otherwise prescribed by law, a reasonable sum for attorney fees at trial and on appeal for the prosecution or defense of such action. [1963 c.514 §§4,5; 1981 c.897 §76; 1995 c.658 §112]

646.550 [Repealed by 1953 c.391 §2]

TELEPHONE SOLICITATION

(Registration of Telephonic Sellers)

646.551 Definitions for ORS 646.551 to 646.557. As used in ORS 646.551 to 646.557, unless the context requires otherwise:

(1) “Telephonic seller” means a person who, on the person’s own behalf, or on behalf of another person, causes or attempts to cause a telephone solicitation to be made under the following circumstances:

(a) The person initiates telephonic contact with a prospective purchaser and represents or implies any of the following:

(A) That a prospective purchaser who buys one or more goods or services unit will receive additional units, whether or not of the same type as purchased, without further cost. As used in this subparagraph, “further cost” does not include actual postage or common carrier delivery charges, if any;

(B) That a prospective purchaser will receive a prize or gift if the person also encourages the prospective purchaser to do either of the following:

(i) Purchase or rent any goods or services; or

(ii) Pay any money, including, but not limited to a delivery or handling charge;

(C) That a prospective purchaser who buys goods or services, because of some unusual event or imminent price increase, will be able to buy these items at prices which are below those usually charged or will be charged for those items;

(D) That the seller is a person other than the actual seller;

(E) That the items for sale or rent are manufactured or supplied by a person other than the actual manufacturer or supplier; or

(F) That the items for sale are gold, silver or other precious metals, diamonds, rubies, sapphires or other precious stones or any interest in oil, gas or mineral fields, wells or exploration sites; or

(b) The telephone solicitation is made by the person in response to inquiries from prospective purchasers generated by advertisement, on behalf of the person and the solicitation is conducted as described in paragraph (a) of this subsection.

(2) “Telephonic seller” does not include any of the following:

(a) A person selling a security as defined in ORS 59.015, or securities which are exempt under ORS 59.025.

(b) A person licensed pursuant to ORS chapter 696 when the transaction is governed by that chapter.

(d) A person licensed pursuant to ORS chapter 744 when the solicited transaction is governed by the Insurance Code.

(e) A person soliciting the sale of a franchise when the solicited transaction is governed by ORS 650.005 to 650.100.

(f) A person primarily soliciting the sale of a subscription to or advertising in a newspaper of general circulation.

(g) A person primarily soliciting the sale of a magazine or periodical, or contractual plans, including book or record clubs:

(A) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise, and which is regulated by the Federal Trade Commission trade regulation concerning “Use of Negative Option Plans by Sellers in Commerce”; or

(B) Using arrangements such as continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.

(h) A person soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling.

(i) A person soliciting without the intent to complete and who does not complete the sales presentation during the telephone solicitation and who only completes the sale presentation at a later face-to-face meeting between the solicitor and the prospective purchaser, unless at that later meeting the solicitor collects or attempts to collect payment for delivery of items purchased.

(j) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this paragraph, “supervised financial institution” means any financial institution or trust company, as those terms are defined in ORS 706.008, or any personal property broker, consumer finance lender, commercial finance lender or insurer that is subject to regulation by an official or agency of this state or the United States.

(k) A person soliciting the sale of funeral or burial services regulated by ORS chapter 692.

(L) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit issued by a governmental agency of this state, or subdivision thereof.

(m) A person or affiliate of a person whose business is regulated by the Public Utility Commission, or a telecommunications utility with access lines of 15,000 or less or a cooperative telephone association.

(n) A person soliciting the sale of a farm product, as defined in ORS 79.0102, if the solicitation does not result in a sale which costs the purchaser in excess of $100.

(o) An issuer or a subsidiary of an issuer that has a class of securities that is subject to section 12 of the Securities Exchange Act of 1934 and that is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that section.

(p) A person soliciting exclusively the sale of telephone answering services to be provided by that person or that person’s employer.

(q) A person registered under the Charitable Solicitations Act. [1989 c.622 §2; 1997 c.249 §196; 1997 c.631 §513; 1999 c.59 §188; 1999 c.402 §5; 2001 c.445 §177; 2007 c.661 §27; 2007 c.836 §47]

646.553 Registration of telephonic sellers; fee; Attorney General as attorney for service of process; rules. (1) A telephonic seller shall not conduct business in this state without having registered with the Department of Justice at least 10 days prior to the conduct of such business. A telephonic seller is required to register in the name under which the telephonic seller conducts business. Individual employees of the telephonic seller are not required to register. A telephonic seller is conducting business in this state if telephone solicitations of prospective purchasers are made from locations in this state or solicitation is made of prospective purchasers located in this state.

(2) A registration shall be effective for one year from the date of filing with the Department of Justice. Each application for registration, or renewal thereof, shall be accompanied by a fee of $400.

(3) The Department of Justice shall send to each registrant a certificate or other appropriate document demonstrating registration compliance, which shall be posted at the telephonic seller’s principal business location.

(4) Each application for registration shall be in writing and shall contain such information regarding the conduct of the telephonic seller’s business and the personnel conducting the business and shall be submitted in such form and manner as the Department of Justice may prescribe.

(5) At the time of submission of a registration application, each telephonic seller shall file with the Attorney General an irrevocable consent appointing the Attorney General to act as the telephonic seller’s attorney to receive service of process in any action, suit or proceeding against the telephonic seller or the telephonic seller’s successor in interest which may arise under ORS 646.605 to 646.652.

(6) The Department of Justice may refuse to issue a registration to, and may suspend, revoke or refuse to renew the registration of, any person who:

(a) Has obtained or attempted to obtain a registration under ORS 646.551 to 646.557 by fraud or material misrepresentation;

(b) Has violated any provision of ORS 646.551 to 646.557;

(d) Has violated an assurance of voluntary compliance entered into under ORS 646.605 to 646.652;

(e) Is guilty of fraud or deceit, or of gross negligence, incompetency or misconduct in the person’s practice of business as a telephonic seller, creating a risk of financial or other injury to the public;

(f) Has been convicted of a felony under the laws of any state or of the United States. However, such conduct may be considered only to the extent permissible under the provisions of ORS 670.280;

(g) Has been convicted of any crime, an element of which is dishonesty or fraud, under the laws of any state or of the United States; or

(h) Has had the person’s authority to engage in business as a telephonic seller refused, canceled, revoked, suspended or not renewed in any state.

(7) When the Department of Justice proposes to refuse to issue or renew a registration or proposes to revoke or suspend a registration, opportunity for hearing shall be accorded as provided in ORS chapter 183. The Department of Justice shall adopt rules prescribing the conduct of the hearing, including but not limited to rules governing the admissibility of evidence.

(8) A person whose registration is revoked or not renewed pursuant to this section shall not be eligible to apply for a registration under ORS 646.551 to 646.557 until two years after the effective date of the revocation or nonrenewal.

(9) A telephonic seller whose registration is revoked, suspended or not renewed under this section shall not conduct business in this state. [1989 c.622 §3; 1999 c.368 §1]

646.555 Burden of proof for person claiming exemption. In any proceeding to enforce the provisions of ORS 646.551 to 646.565 and 646.608, the burden of proving an exemption or exception is upon the person claiming it. [1989 c.622 §4]

646.557 Required disclosures by telephonic seller. In addition to complying with the requirements of ORS 646.553, each telephonic seller, at the time the solicitation is made and prior to consummation of any sales transaction, shall provide all of the following information to each prospective purchaser:

(1) If the telephonic seller represents or implies that a prospective purchaser will receive, without charge therefor, certain specific items or one item from among designated items, whether the items are denominated as gifts, premiums, bonuses, prizes or otherwise, the seller shall provide the following:

(a) The information required to be filed by ORS 646.553.

(b) The complete street address of the location from which the salesperson is calling the prospective purchaser and, if different, the complete street address of the telephonic seller’s principal location.

(c) The total number of individuals who have actually received from the telephonic seller, during the preceding 12 months or if the seller has not been in business that long, during the period the telephonic seller has been in business, the item having the greatest value and the item with the smallest odds of being received.

(2) If the telephonic seller is offering to sell any metal, stone or mineral, the seller shall provide the following information:

(a) The complete street address of the location from which the salesperson is calling the prospective purchaser and, if different, the complete street address of the telephonic seller’s principal location.

(b) The information required to be filed by ORS 646.553.

(3) If the telephonic seller is offering to sell an interest in oil, gas or mineral fields, wells or exploration sites, the seller shall provide the following information:

(b) The information required to be filed by ORS 646.553.

(4) If the telephonic seller represents that office equipment or supplies being offered are offered at prices which are below those usually changed for these items, the seller shall provide the following information:

(b) The name of the manufacturer of each of the items the telephonic seller has represented for sale and in which the prospective purchaser expresses interest. [1989 c.622 §5]

646.559 Rules. In accordance with any applicable provision of ORS chapter 183, the Attorney General may adopt rules to carry out the provisions of ORS 646.551 to 646.557. [1989 c.622 §6]

646.560 [Repealed by 1953 c.391 §2]

(Unlawful Telephone Solicitations)

646.561 Definitions for ORS 646.561 to 646.565. As used in ORS 646.561 to 646.565, unless the context otherwise requires:

(1) “Charitable organization” means an organization organized for charitable purposes as defined in ORS 128.801.

(2) “Party” means a telephone customer of a telecommunications company.

(3) “Telephone solicitation” means the solicitation by telephone by any person of a party for the purpose of encouraging the party to purchase real estate, goods or services, or make a donation. “Telephone solicitation” does not include:

(a) Calls made by a charitable organization, a public agency or volunteers on behalf of the organization or agency to members of the organization or agency or to persons who have made a donation or expressed an interest in making a donation to the organization or agency;

(b) Calls limited to polling or soliciting the expression of ideas, opinions or votes; or

646.563 Telephone solicitation of party who states desire not to be called. A person engages in an unlawful practice if, during a telephone solicitation, the called party states a desire not to be called again and the person making the telephone solicitation makes a subsequent telephone solicitation of the called party at that number. [1989 c.622 §9; 2001 c.924 §15]

646.565 Notice of provisions of ORS 646.561 and 646.563; rulemaking by Public Utility Commission. The Public Utility Commission shall by rule require that telecommunications companies inform parties of the provisions of ORS 646.561 and 646.563. Notification may be by:

(1) Annual inserts in the billing statements mailed to parties; or

(2) Conspicuous publication of the notice in the consumer information pages of local telephone directories. [1989 c.622 §10]

646.567 Definitions for ORS 646.567 to 646.578. As used in ORS 646.567 to 646.578, unless the context otherwise requires:

(1) “Charitable organization” means an organization organized for charitable purposes as defined in ORS 128.801.

(2) “Information about a party” means information specific to a party, including but not limited to the name and address of the party and the method by which the party paid the fee required by ORS 646.574.

(3) “Party” means a telephone customer of a telecommunications company.

(4) “Qualified trade association” means an organization with at least the following characteristics:

(a) Written bylaws or governing documents including a code of conduct for its members; and

(b) Criteria and procedures for expelling or suspending members who violate the association’s bylaws or governing documents.

(5) “Telephone solicitation” means the solicitation by telephone by any person of a party for the purpose of encouraging the party to purchase real estate, goods or services, or make a donation. “Telephone solicitation” does not include:

(a) Calls made in response to a request or inquiry by the called party;

(b) Calls made by a charitable organization, a public agency or volunteers on behalf of the organization or agency to members of the organization or agency or to persons who have donated or expressed an interest in donating real estate, goods or services to the organization or agency;

(d) Business to business contacts. [1989 c.451 §1; 1999 c.564 §6; 2001 c.170 §1; 2007 c.441 §4]

646.568 Findings and purpose. (1) The Legislative Assembly finds that:

(a) Fraud committed by means of unwanted telephone solicitations causes economic harm to Oregonians and constitutes an invasion of privacy and a threat to the welfare of the people of this state.

(b) Unwanted telephone solicitations cause Oregonians harm because:

(A) Telephone solicitations have become a primary tool for the marketing of real estate, goods and services to parties. Telephone solicitors have engaged in the practice of cold calling, which is the initiation of calls to parties with whom the telephone solicitors have no prior business relationship, to market scams, fraudulent schemes and worthless goods and services to unsuspecting parties who often lose thousands of dollars as a result of the solicitations.

(B) Telephone solicitors often make calls based on lists targeting the elderly or other vulnerable populations who are unable to assess the risks associated with engaging in sales transactions over the telephone.

(C) Technologies designed to assist parties in avoiding unwanted telephone solicitations are not effective and place an additional financial burden on parties, effectively shifting the cost of unwanted telephone solicitations to parties. These technologies include:

(i) Caller identification systems, for which parties bear the cost of the caller identification service and any related hardware, and for which technology exists that allows telephone solicitors to block caller identification data;

(ii) Privacy manager services that, for a fee, intercept calls; and

(iii) Unlisted telephone numbers, for which parties pay an additional fee.

(D) Unwanted telephone solicitations tie up telephone lines and prevent legitimate telephone calls from being received or placed by parties. Predictive dialers utilized by telephone solicitors that automatically dial parties’ telephone numbers frequently result in abandoned telephone solicitations and silence when the party answers the phone. These solicitations constitute an intrusion on the property of parties and an invasion of privacy.

(E) The growing practice of preacquired account telephone solicitation, in which a telephone solicitor acquires the party’s billing information prior to initiating a telephone solicitation, has increasingly resulted in unauthorized charges to parties’ financial accounts.

(c) Existing state and federal laws are inadequate to prevent the harm to the public welfare that results from telephone solicitations.

(d) Allowing parties to choose not to receive unwanted telephone solicitations by placing their telephone numbers on a “do not call” list provides a means by which parties can protect themselves from fraud related to telephone solicitations and from the resulting economic harm and invasion of privacy.

(2) The purpose of ORS 646.567 to 646.578 is to prevent the harmful effects set forth in subsection (1)(b) of this section that result from telephone solicitations without inhibiting legitimate telephone solicitations to parties who choose to receive them. Prohibiting telephone solicitations to those Oregonians whose telephone numbers appear on the list described in ORS 646.574 enables Oregonians to choose whether to receive telephone solicitations. [2007 c.441 §2]

646.569 Prohibition on telephone solicitation of party whose name is included on list described in ORS 646.574 or on federal registry designated under ORS 646.572. (1) A person may not engage in the telephone solicitation of a party at a telephone number included on the then current list:

(a) Published by the administrator of the telephone solicitation program established under ORS 646.572 and 646.574; or

(b) Maintained as part of the federal registry designated under ORS 646.572.

(2) For purposes of this section:

(a) “Predecessor of the business enterprise” means a financial institution as defined in 15 U.S.C. 6827 that has:

(A) Merged with or been acquired by the business enterprise for which the person is calling; or

(B) Sold or assigned an account of a party who has previously purchased from the business enterprise, to the business enterprise for which the person is calling.

(b) “Telephone solicitation” does not include a person soliciting business from prospective purchasers who have previously purchased from:

(A) The person making the solicitation;

(B) The business enterprise for which the person is calling; or

(C) A predecessor of the business enterprise for which the person is calling. [1989 c.451 §2; 1999 c.564 §1; 2001 c.503 §1; 2007 c.441 §5]

646.570 [Repealed by 1953 c.391 §2]

646.571 [1989 c.451 §3; 1999 c.564 §7; renumbered 646.578 in 1999]

646.572 Administration of telephone solicitation program through contract or by designation of federal registry; contract provisions; duty of Attorney General. (1) The Attorney General shall either:

(a) Advertise for bids and enter into a contract with a person to act as the administrator of the telephone solicitation program described in ORS 646.574; or

(b) Designate a federal “do not call” registry, including but not limited to the registry maintained by the Federal Trade Commission under 16 C.F.R. 310, in lieu of an Oregon do not call registry.

(2) The Attorney General may include in a contract with the administrator any provision that the Attorney General determines is in the public interest.

(3) If a party requests, the Attorney General shall instruct the party on how to register the party’s telephone number on the federal “do not call” registry designated under subsection (1)(b) of this section. [1999 c.564 §3; 2007 c.441 §6]

646.574 List of persons who do not wish to receive telephone solicitations; fee; disclosure of list; complaints. (1) If the Attorney General enters into a contract pursuant to ORS 646.572 (1)(a), the administrator of the telephone solicitation program shall create, maintain and distribute a database containing a list of telephone numbers of parties who do not wish to receive any telephone solicitation at the listed numbers. Beginning on the date specified in the contract between the administrator and the Attorney General and at least once each quarter thereafter, the administrator shall update the list by:

(a) Adding the numbers of parties who have filed notice and paid the fee as required in this section; and

(b) Removing the numbers of those parties who have requested that their numbers be removed or whose listing has expired without renewal.

(2) A party may file notice together with a fee of $10 per listed number, or such lesser amount as may be specified in the contract, with the administrator indicating the party’s desire to place telephone numbers on the list described in subsection (1) of this section. The notice shall be filed in the form and manner specified in the contract between the administrator and the Attorney General. The notice is effective for one year from the date the party files the notice. The party may renew the notice for additional periods of one year by filing an additional notice and paying an additional fee by the anniversary of the original filing date of the notice.

(3) Information about a party is confidential. The Attorney General may not disclose information about a party.

(4) The administrator may not furnish the list or disclose any information about a party to any person, except as follows:

(a) Upon request of a person engaging or intending to engage in telephone solicitations and after payment of the fees in the amounts specified in the contract between the administrator and the Attorney General, the administrator shall furnish to the person:

(A) The most recent copy of the list described in subsection (1) of this section.

(B) The names of the parties whose telephone numbers are on the list.

(b) Upon request of a qualified trade association and after payment of the fees in the amounts specified in the contract between the administrator and the Attorney General, the administrator shall furnish to the qualified trade association:

(A) The most recent copy of the list described in subsection (1) of this section.

(B) The names of the parties whose telephone numbers are on the list.

(c) A qualified trade association that receives a list or the names of the parties whose telephone numbers are on the list under this subsection may make the list or the names available to its members on any terms the association and its members may impose.

(d) Upon request of the Attorney General for the purpose of enforcing ORS 646.569, the administrator shall furnish the Attorney General with all requested information about a party or any person who the Attorney General believes has engaged in a solicitation prohibited by ORS 646.569. The administrator may not charge a fee for furnishing the information to the Attorney General.

(e) Upon request of any party who has filed a notice and paid the fee as provided in subsection (2) of this section, the administrator shall furnish the party with all requested information about the party or any person who the party believes has engaged in a solicitation prohibited by ORS 646.569. The administrator may not charge a fee for furnishing the information to the party.

(f) The administrator shall comply with any lawful subpoena or court order directing disclosure of the list and of any other information.

(g) The administrator shall provide all information that may be requested by any successor administrator who may be selected by the Attorney General. The administrator may not charge a fee for furnishing the information to the successor administrator.

(5) The administrator shall promptly forward any complaints concerning alleged violations of ORS 646.569 to the Attorney General.

(6) Fees paid to the administrator under this section shall be considered income to the administrator in the manner specified in the contract between the administrator and the Attorney General.

(7) When furnishing the list or names under subsection (4) of this section, the administrator shall make the information available in printed and electronic form. [1999 c.564 §4; 2001 c.170 §2; 2007 c.441 §7]

646.576 Rules. In the manner provided by ORS chapter 183, the Attorney General may adopt rules relating to any aspect of the establishment, operation or administration of the telephone solicitation program established under ORS 646.572 and 646.574. [1999 c.564 §5]

646.578 Notice of provisions of ORS 646.567 to 646.578; rulemaking by Public Utility Commission. The Public Utility Commission shall by rule require that telecommunications companies inform parties of the provisions of ORS 646.567 to 646.578 and 646.608. Notification may be by:

(1) Annual inserts in the billing statements mailed to parties; or

(2) Conspicuous publication of the notice in the consumer information pages of local telephone directories. [Formerly 646.571]

646.580 [Repealed by 1953 c.391 §2]

646.590 [Repealed by 1953 c.391 §2]

646.600 [Repealed by 1953 c.391 §2]

UNLAWFUL TRADE PRACTICES

646.605 Definitions for ORS 646.605 to 646.652. As used in ORS 646.605 to 646.652:

(1) “Appropriate court” means the circuit court of a county:

(a) Where one or more of the defendants reside;

(b) Where one or more of the defendants maintain a principal place of business;

(d) With the defendant’s consent, where the prosecuting attorney maintains an office.

(2) “Documentary material” means the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situate.

(3) “Examination” of documentary material shall include inspection, study or copying of any such material, and taking testimony under oath or acknowledgment in respect of any such documentary material or copy thereof.

(4) “Person” means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations and any other legal entity except bodies or officers acting under statutory authority of this state or the United States.

(5) “Prosecuting attorney” means the Attorney General or the district attorney of any county in which a violation of ORS 646.605 to 646.652 is alleged to have occurred.

(6)(a) “Real estate, goods or services” means those that are or may be obtained primarily for personal, family or household purposes, or that are or may be obtained for any purposes as a result of a telephone solicitation, and includes loans and extensions of credit, and franchises, distributorships and other similar business opportunities, but does not include insurance.

(b) Notwithstanding paragraph (a) of this subsection:

(A) “Real estate” does not cover conduct covered by ORS chapter 90 except as provided in section 2, chapter 658, Oregon Laws 2003.

(B) “Loans and extensions of credit” does not include transactions involving a pawnbroker, as defined in ORS 726.010, that is required to be licensed under ORS chapter 726.

(7) “Telephone solicitation” means a solicitation where a person, in the course of the person’s business, vocation or occupation, uses a telephone or an automatic dialing-announcing device to initiate telephonic contact with a potential customer and the person is not one of the following:

(a) A person who is a broker-dealer or salesperson licensed under ORS 59.175, or a mortgage banker or mortgage broker licensed under ORS 86A.106 when the solicitation is for a security qualified for sale pursuant to ORS 59.055.

(b) A real estate licensee or a person who is otherwise authorized to engage in professional real estate activity pursuant to ORS chapter 696, when the solicitation involves professional real estate activity.

(c) A person licensed or exempt from licensure as a builder pursuant to ORS chapter 701, when the solicitation involves the construction, alteration, repair, improvement or demolition of a structure.

(d) A person licensed or otherwise authorized to sell insurance as an insurance producer pursuant to ORS chapter 744, when the solicitation involves insurance.

(e) A person soliciting the sale of a newspaper of general circulation, a magazine or membership in a book or record club who complies with ORS 646.611, when the solicitation involves newspapers, magazines or membership in a book or record club.

(f) A person soliciting without the intent to complete and who does not complete the sales presentation during the telephone solicitation and who only completes the sales presentation at a later face-to-face meeting between the solicitor and the prospective purchaser.

(g) A supervised financial institution or parent, subsidiary or affiliate thereof. As used in this paragraph, “supervised financial institution” means any financial institution or trust company, as those terms are defined in ORS 706.008, or any personal property broker, consumer finance lender, commercial finance lender or insurer that is subject to regulation by an official or agency of this state or of the United States.

(h) A person who is authorized to conduct prearrangement or preconstruction funeral or cemetery sales, pursuant to ORS chapter 692, when the solicitation involves prearrangement or preconstruction funeral or cemetery plans.

(i) A person who solicits the services provided by a cable television system licensed or franchised pursuant to state, local or federal law, when the solicitation involves cable television services.

(j) A person or affiliate of a person whose business is regulated by the Public Utility Commission of Oregon.

(k) A person who sells farm products as defined by ORS 576.006 if the solicitation neither intends to nor actually results in a sale that costs the purchaser in excess of $100.

(L) An issuer or subsidiary of an issuer that has a class of securities that is subject to section 12 of the Securities Exchange Act of 1934 and that is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) of that section.

(m) A person soliciting exclusively the sale of telephone answering services to be provided by that person or that person’s employer when the solicitation involves answering services.

(n) A telecommunications utility with access lines of 15,000 or less or a cooperative telephone association when the solicitation involves regulated goods or services.

(8) “Trade” and “commerce” mean advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services, and include any trade or commerce directly or indirectly affecting the people of this state.

(9) “Unconscionable tactics” include, but are not limited to, actions by which a person:

(a) Knowingly takes advantage of a customer’s physical infirmity, ignorance, illiteracy or inability to understand the language of the agreement;

(b) Knowingly permits a customer to enter into a transaction from which the customer will derive no material benefit;

(c) Permits a customer to enter into a transaction with knowledge that there is no reasonable probability of payment of the attendant financial obligation in full by the customer when due; or

(d) Knowingly takes advantage of a customer who is a disabled veteran, a disabled servicemember or a servicemember in active service, or the spouse of a disabled veteran, disabled servicemember or servicemember in active service. For purposes of this paragraph:

(A) “Disabled veteran” has the meaning given that term in ORS 408.225.

(B) “Disabled servicemember” means a servicemember, as defined in 50 U.S.C. App. 511 as in effect on January 1, 2010, who may be entitled to disability compensation under laws administered by the United States Department of Veterans Affairs.

(i) A servicemember called into active service under Title 10 or Title 32 of the United States Code as in effect on January 1, 2010; or

(ii) A servicemember on active state duty, as defined in ORS 398.002.

(10) A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation.

(11) A loan is made “in close connection with the sale of a manufactured dwelling” if:

(a) The lender directly or indirectly controls, is controlled by or is under common control with the seller, unless the relationship is remote and is not a factor in the transaction;

(b) The lender gives a commission, rebate or credit in any form to a seller who refers the borrower to the lender, other than payment of the proceeds of the loan jointly to the seller and the borrower;

(d) The seller directly and materially assists the borrower in obtaining the loan;

(e) The seller prepares documents that are given to the lender and used in connection with the loan; or

(f) The lender supplies documents to the seller used by the borrower in obtaining the loan. [1965 c.490 §2; 1967 c.599 §1; 1971 c.744 §5; 1973 c.235 §1; 1977 c.195 §1; 1989 c.137 §1; 1993 c.508 §40; 1995 c.79 §328; 1997 c.249 §197; 1997 c.631 §514; 1999 c.59 §189; 1999 c.402 §6; 2001 c.917 §4; 2003 c.364 §52; 2003 c.658 §11; 2007 c.71 §198; 2007 c.319 §31; 2009 c.215 §1; 2010 c.94 §1]

Note: Section 2, chapter 658, Oregon Laws 2003, was repealed by section 14, chapter 658, Oregon Laws 2003, as amended by section 42, chapter 906, Oregon Laws 2007. The text of 646.605 was not amended by enactment of the Legislative Assembly to reflect the repeal. Editorial adjustment of 646.605 for the repeal of section 2, chapter 658, Oregon Laws 2003, has not been made.