Colorado Attorney General Phil Weiser campaigned on a platform of protecting the state’s consumers from bad-acting businesses.
But when he took office in January, he quickly believed that the state’s laws provided him with an arsenal of spitballs to battle a problem that really needed a cannonball-sized solution.
“I took office and very quickly there was this survey of the consumer protection laws in the 50 states,” said Weiser, a Democrat, citing a report from the National Consumer Law Center. “It ranked Colorado 48. We have not examined our consumer protection laws in three-ish decades. As a result, our penalties really lag, meaning that there’s a risk someone might say, ‘You know, maybe I’ll get caught. But if I do, what’s the big deal?’ The penalties are so modest it could be just the cost of doing business. And that scares me.”
The legislature responded this year by passing the first major overhaul of the state’s consumer protection laws in decades. The changes give prosecutors and private attorneys much more leeway in bringing cases against companies with questionable business practices and open the door for significantly larger settlements and judgments for consumers who have been wronged.
“This is a big deal,” Weiser said. “It gives us an ability to be more effective more quickly in taking on people doing bad things. The old law had some loopholes, or some defenses, that scammers could take advantage of so they could get away with (offenses).”
Business interests were leery, pushing back as the effort made its way through the Colorado Capitol. They warned of an increase in costly lawsuits for business owners and even suggested that the overhaul could make commerce in Colorado more difficult.
“While providing greater protections for consumers is a good thing,” Holly Shilliday, representing the Denver Metro Chamber of Commerce, testified before a statehouse committee, “the law protecting consumers should also be fair to businesses.”
The business community successfully squashed some original provisions in the bill, but the changes were ultimately still sweeping.
The bill giving the law more teeth is awaiting Gov. Jared Polis’ signature. But he’s expected soon to make it law, quickly changing how businesses are policed since the measure goes into effect immediately.
The legislation would build off current laws by making it so that:
- Prosecutors no longer have to prove that a business’ bad practices have a significant public harm or impact before bringing an action under the Colorado Consumer Protection Act. That will allow them to tackle cases before broad damage is done.
- Prosecutors no longer must prove that a business knowingly acted maliciously toward consumers, a provision that often prevented lawsuits from being brought against bad actors because the mental state was so difficult to prove. Lawmakers lowered the standard to recklessly, which opens up the kinds of cases prosecutors can pursue.
- There will now be a catch-all provision in Colorado’s consumer protection statutes that will allow the attorney general’s office to pursue deceptive practices before they are listed as being illegal under state law. Before, lawmakers had to individually list each bad or deceptive practice they wanted to prevent. That gave malevolent businesses the ability to stay one step ahead of the law by inventing new scams.
- The legislation dramatically increases the maximum amount a business might be ordered to pay for each violation from $2,000 to $20,000. If a violation is against an elderly person, the maximum payout per violation jumps to $50,000 where it was $10,000 before.
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Private attorneys who want to bring Colorado Consumer Protection Act lawsuits would similarly have loosened requirements in the cases they seek. That’s with some exceptions, including one mandating that they still abide the the significant public impact provision
The attorney general’s office cited one case that it lost under Weiser’s predecessor that might have had a different outcome under the updated laws. In that legal action, the state sued a law firm that focused on foreclosures, accusing it of wrongdoing in the wake of the 2008 financial crisis. However, a judge rejected the claims, at least in part, because prosecutors failed to show the significant public impact element.
One pending case that could benefit from the rewritten laws is Colorado’s lawsuit against opioid manufacturer Purdue Pharma. Not only could a potential settlement amount be boosted by the increase in violation minimums, but also the state’s legal action no longer must climb the “knowingly” legal hill.
“At a minimum,” Weiser said, “it’s really clear it was reckless.”
The updated laws bring Colorado into line with the rest of the country; previously the state was an outlier in consumer protection standards. Only a handful of states have the “knowingly” provision or don’t have a catch-all clause. It was also near the bottom of the 50 states when it came to per-violation penalties.
The Federal Trade Commission last year ranked Colorado 12th in terms of fraud reports per 100,000 people. The agency also said the state had suffered $23.2 million in total fraud losses with $365 in median fraud losses.
“In so many key respects we were falling short,” said Rep. Mike Weissman, an Aurora Democrat who was one of the prime sponsors of the bill. “Those are not ways in which Colorado wants to be distinguished. We are exceptional among states in a lot of ways, and that’s good. We should not be an exception in the efficacy of our consumer protection law.”
As for the business community’s concerns, Weissman said he doesn’t expect to see major impacts. “Business is going just fine in all of these other states,” he said of places with similar or tougher consumer protection laws.
Still, lawmakers see places to continue improving. Sen. Mike Foote, a Lafayette Democrat who worked alongside Weissman to bring the changes, said more could be done.
“It’s still not the strongest in the country, I don’t think,” Foote said. “But there were some pretty glaring weaknesses we had before. We can always do more, but one step at a time, I suppose.”
“This bill certainly brings it up to par,” he added.