§480-13  Suits by persons injured; amount of recovery, injunctions.  (a)  Except as provided in subsections (b) and (c), any person who is injured in the person's business or property by reason of anything forbidden or declared unlawful by this chapter:

     (1)  May sue for damages sustained by the person, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorney's fees together with the costs of suit; provided that indirect purchasers injured by an illegal overcharge shall recover only compensatory damages, and reasonable attorney's fees together with the costs of suit in actions not brought under section 480-14(c); and

     (2)  May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorney's fees together with the costs of suit.

     (b)  Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

     (1)  May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorney's fees together with the costs of suit; provided that where the plaintiff is an elder, the plaintiff, in the alternative, may be awarded a sum not less than $5,000 or threefold any damages sustained by the plaintiff, whichever sum is the greater, and reasonable attorney's fees together with the costs of suit.  In determining whether to adopt the $5,000 alternative amount in an award to an elder, the court shall consider the factors set forth in section 480-13.5; and

     (2)  May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorney's fees together with the costs of suit.

     (c)  The remedies provided in subsections (a) and (b) shall be applied in class action and de facto class action lawsuits or proceedings, including actions brought on behalf of direct or indirect purchasers; provided that:

     (1)  The minimum $1,000 recovery provided in subsections (a) and (b) shall not apply in a class action or a de facto class action lawsuit;

     (2)  In class actions or de facto class actions where both direct and indirect purchasers are involved, or where more than one class of indirect purchasers are involved, a defendant shall be entitled to prove as a partial or complete defense to a claim for compensatory damages that the illegal overcharge has been passed on or passed back to others who are themselves entitled to recover so as to avoid the duplication of recovery of compensatory damages;

     (3)  That portion of threefold damages in excess of compensatory damages shall be apportioned and allocated by the court in its exercise of discretion so as to promote effective enforcement of this chapter and deterrence from violation of its provisions;

     (4)  In no event shall an indirect purchaser be awarded less than the full measure of compensatory damages attributable to the indirect purchaser;

     (5)  In any lawsuit or lawsuits in which claims are asserted by both direct purchasers and indirect purchasers, the court is authorized to exercise its discretion in the apportionment of damages, and in the transfer and consolidation of cases to avoid the duplication of the recovery of damages and the multiplicity of suits, and in other respects to obtain substantial fairness;

     (6)  In any case in which claims are being asserted by a part of the claimants in a court of this State and another part of the claimants in a court other than of this State, where the claims arise out of same or overlapping transactions, the court is authorized to take all steps reasonable and necessary to avoid duplication of recovery of damages and multiplicity of suits, and in other respects, to obtain substantial fairness;

     (7)  In instances where indirect purchasers file an action and obtain a judgment or settlement prior to the completion of a direct purchaser's action in courts other than this State, the court shall delay disbursement of the damages until such time as the direct purchaser's suits are resolved to either final judgment, consent decree or settlement, or in the absence of a direct purchaser's lawsuit in the courts other than this State by direct purchasers, the expiration of the statute of limitations, or in such manner that will minimize duplication of damages to the extent reasonable and practicable, avoid multiplicity of suit, and obtain substantial fairness; and

     (8)  In the event damages in a class action or de facto class action remain unclaimed by the direct or indirect purchasers, the class representative or the attorney general shall apply to the court and such funds shall escheat to the State upon showing that reasonable efforts made by the State to distribute the funds have been unsuccessful.

     (d)  The remedies provided in this section are cumulative and may be brought in one action. [L 1961, c 190, §11; Supp, §205A-11; HRS §480-13; am L 1969, c 108, §1; am L 1974, c 33, §1; am L 1980, c 69, §3; gen ch 1985; am L 1987, c 274, §4; am L 1998, c 179, §2; am L 2001, c 79, §1; am L 2002, c 229, §3; am L 2005, c 108, §3]

 

Rules of Court

 

  Injunctions, see HRCP rule 65.

 

Law Journals and Reviews

 

  Updating Unfair or Deceptive Acts and Practices Under Chapter 480-2.  10 HBJ No. 13, at pg. 109.

  What Can the Abolition of Slavery Teach Us About Climate Change?  Local Action in the Liquefied Natural Gas Controversy.  35 UH L. Rev. 687 (2013).

 

Case Notes

 

  Divestiture is not available remedy in private action.  518 F.2d 913.

  Requires showing that suit in public interest; may be proven by knowledge of illegality.  732 F.2d 1403.

  In action by physician relating to termination of hospital staff privileges, public interest favors hospital.  754 F.2d 1420.

  Public interest requirement not met by employer's negligent misrepresentation that it guaranteed employees full payment of their pensions.  804 F.2d 1418.

  Section creates private right of action for violations of §480-2.  809 F.2d 626.

  Appellant debtor's claim under this section remanded to the bankruptcy court to make the proper requisite findings of fact under this section where the bankruptcy court's findings of fact appear to establish that debtor's losses "result[ed] from" debtor's default, rather than from appellee lenders' failure to shout out the postponement of the foreclosure sale of debtor's property.  674 F.3d 1083 (2012).

  A borrower need only allege that a lender has breached its statutory duty not to engage in "unfair or deceptive acts or practices in the conduct of any trade or commerce" in a way that caused private damages in order to state a claim under this section and §480-2.  761 F.3d 1046 (2014).

  District courts evaluating whether a borrower's complaint states a claim under this section and §480-2 against a lender need only address whether the complaint adequately alleges that the lender used unfair or deceptive acts in its relationship with the borrower, without looking to negligence law to determine whether the lender breached a common law duty of care.  761 F.3d 1046 (2014).

  Availability of laches, estoppel, and unclean hands as defenses in private antitrust action discussed.  296 F. Supp. 920.

  Past or impending anticompetitive behavior justifying injunctive relief was not shown.  491 F. Supp. 1199.

  Section 480-13 creates private right of action for violations of §480-2.  491 F. Supp. 1199.

  Real estate transaction not a sale of goods or services, therefore defendants were not "merchants" within meaning of statute; there is insufficient public interest to bring a suit under this section where there is merely a sale of a hotel from one private party to another.  680 F. Supp. 1438.

  Although a damage claim under this section based on violations of §480-2 may only be asserted against the wrongdoer, a rescission claim under chapter 480 can stand against subsequent assignees if the contract is void; where plaintiff had alleged that defendant mortgage broker assigned or sold loans to other defendants, plaintiff could seek rescission against other defendants if mortgage broker violated chapter 480 and the loans were void; however, a plaintiff seeking affirmatively to void a mortgage transaction under §480-12 must "place the parties in as close a position as they held prior to the transaction".  861 F. Supp. 2d 1153 (2012).

  Because the language contained in §480-2 is similar to California's statute, and since plaintiff appears to base plaintiff's claim on "fraudulent concealment", plaintiff was required to plead plaintiff's unfair and deceptive trade practices claim with specificity; defendants' motion to dismiss based on this issue granted.  730 F. Supp. 2d 1213 (2010).

  Plaintiffs' unfair or deceptive acts or practices claims dismissed; this section and §480-2 do not provide a cause of action for personal injury claims.  100 F. Supp. 2d 1265 (2010).

  Plaintiff not entitled to summary judgment on plaintiff's claim under this section, as plaintiff failed to establish that plaintiff was actually damaged by defendant's failure to register as a debt collector.  183 F. Supp. 2d 1234.

  A municipality may be held liable under this chapter if its act is done "in the conduct of any trade or commerce", but is not subject to a treble damage penalty.  215 F. Supp. 2d 1098.

  Requisites of allegations for standing purposes.  61 H. 607, 607 P.2d 1304.

  Policy is to foster private actions even where acts do not culminate in injury to competition.  63 H. 289, 627 P.2d 260.

  As between common law fraud claim and chapter 480 claim, where election of remedies was not unequivocal and knowledgeable, plaintiff not estopped from recovering under statutory claim.  80 H. 54, 905 P.2d 29.

  Real estate or residences did not qualify as "goods" under §480-1, but did qualify as "personal investments"; homebuyer thus had standing as "consumer" to bring claim under this section.  80 H. 54, 905 P.2d 29.

  Under subsection (b)(1), award of attorneys' fees are mandatory and comprise portion of the statutory recovery for purposes of calculating the "greater amount" of recovery.  80 H. 54, 905 P.2d 29.

  Where employee was not a "consumer" as defined under §480-1, employee lacked standing to maintain private cause of action under this section against workers' compensation insurer based on alleged violation of §480-2.  83 H. 457, 927 P.2d 858.

  Where employer was not a "consumer" as defined under §480-1, employee could not maintain action under this section, based on employee's third party beneficiary status, against workers' compensation insurer for alleged violation of §480-2.  83 H. 457, 927 P.2d 858.

  There is no private claim for relief under this section for unfair methods of competition in violation of §480-2; private remedy is restricted to claims of unfair or deceptive acts or practices.  91 H. 224, 982 P.2d 853.

  Where appellants failed to adduce evidence of a causal connection  between appellees' "anticompetitive" conduct and appellees' alleged monopoly power, trial court properly concluded that there was insufficient evidence to sustain appellants' attempt to monopolize claim under §480-9; thus, as appellants failed to prove a violation of chapter 480, appellants had no standing to bring claim for relief under subsection (a).  91 H. 224, 982 P.2d 853.

  As subsection (b) enumerates the specific damages that a consumer may recover under this chapter and makes no provision for punitive damages, plaintiffs were precluded from seeking punitive damages under this chapter.  98 H. 309, 47 P.3d 1222.

  By the plain language of this chapter, no actual purchase is necessary as a prerequisite to a consumer recovering damages under this section, based on injuries stemming from violations of §480-2.  98 H. 309, 47 P.3d 1222.

  Where plaintiff alleged that, as a result of defendant's unfair or deceptive practices, plaintiff was required to divert substantial resources and time to deal with its members' problems created by defendant's conduct--"resources that otherwise would go to support its principal mission in service of its members", plaintiff sufficiently alleged the "injury to business or property" element essential to recovery under this section.  113 H. 77, 148 P.3d 1179.

  Although plaintiffs were "consumers" within the meaning of §480-1 and this section, plaintiffs' payment of their Hawaii medical services association (HMSA) lien to the Kentucky-based company that contracted with HMSA to provide subrogation and "claims recovery services", but which had violated §443B-3 (collection agency registration requirements), did not constitute an injury for which plaintiffs could bring suit under subsection (b).  117 H. 153, 177 P.3d 341.

  Employees are "any persons" within the meaning of §§480-1 and 480-2(e) and are within the category of plaintiffs who have standing to bring a claim under §480-2(e) for a violation of §481B-14; however, based on the allegations contained in employees' amended complaint, employees did not sufficiently allege the "nature of the competition" to bring a claim for damages against employer under §480-2(e) and subsection (a) for a violation of §481B-14.  122 H. 423, 228 P.3d 303 (2010).

  Where employees asserted an unfair method of competition claim based on a violation of §481B-14, circuit court erred in granting employers' motion for summary judgment because employees sufficiently proved that:  (1) employers' conduct negatively affected competition; and (2) the unlawful conduct injured employees in their business or property by depriving employees of tip income to which they were entitled.  133 H. 1, 323 P.3d 792 (2014).

  Hotel service employee was entitled to attorneys' fees for time expended on cross appeal of trial court's grant of summary judgment in favor of hotel operators on employee's antitrust claim, where the judgment on appeal that employee had satisfied the remaining element required for recovery on the claim materially altered the legal relationship of the parties and the only task remaining for the trial court on remand was the determination of the amount of damages.  135 H. 128, 346 P.3d 197 (2015).

  A fraudulent transfer promulgated with the intent required to impose punitive damages justifies a punitive award at a 2:1 ratio to the actual damages suffered by the plaintiff, resulting in an award of treble damages once the compensatory and punitive awards are combined.  135 H. 254, 349 P.3d 361 (2015).

  Punitive damages award of $1,642,857, or more than quadruple the amount of the compensatory award, for grantee's intentional participation in fraudulent transfer of judgment debtors' real property, was not grossly excessive and did not violate federal due process rights, where the respective portions of the punitive damages award were justified as: (1) compensation for judgment creditors' attorney's fees and costs; (2) a means to deter and punish grantee's intentional participation in a fraudulent transfer; and (3) a means to punish aggravated misconduct that included targeting an elderly and financially vulnerable couple and engaging in repeated unlawful conduct with knowledge of the civil harm that conduct created.  135 H. 254, 349 P.3d 361 (2015).

  Liability under section not limited to injuries to business; does not extend to personal injury actions.  1 H. App. 111, 615 P.2d 749.

  Damages for mental distress and suffering are not recoverable.  2 H. App. 301, 632 P.2d 1071.

  Lender of domestic currency is not a "merchant".  2 H. App. 301, 632 P.2d 1071.

  Essential elements for cause of action under this section.  2 H. App. 435, 634 P.2d 111.

  Legislature was aware that damages might be de minimus in a consumer action and specifically provided for the $1,000 award or triple damages to cover that possibility.  2 H. App. 435, 634 P.2d 111.

  Does not supersede remedy for common law fraud; corporation's president was "merchant".  6 H. App. 125, 712 P.2d 1148.

  Plaintiff suing store's commercial general liability insurer for injuries received in slip and fall was not "consumer" as defined in §480-1, and therefore lacked standing to maintain private cause of action under this section.  82 H. 363 (App.), 922 P.2d 976.

  When litigant is entitled to treble damages under this section, trial court shall not award three times compensatory damages plus compensatory damages; proper measurement of treble damages is simply three times compensatory damages.  84 H. 162 (App.), 931 P.2d 604.

  In action by consumer under §480-2, "unclean hands" of consumer not a defense to claim for damages under subsection (b)(1).  86 H. 405 (App.), 949 P.2d 1026.

  Though section does not provide for setoff in unfair and deceptive trade practice cases, under certain circumstances, such setoff allowable; court properly awarded defendant car dealer car's ten-day rental value and cost of repairs for damage to car inflicted by plaintiff.  86 H. 405 (App.), 949 P.2d 1026.

  Trebling of damages under subsection (b)(1) should be calculated before setoff award to defendant is applied.  86 H. 405 (App.), 949 P.2d 1026.

 

 

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