| 1 | The State Administration Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to class action lawsuits; creating s. |
| 7 | 774.01, F.S.; providing requirements for capacity to file |
| 8 | a class action; limiting actions to Florida residents; |
| 9 | providing exceptions; providing requirements for monetary |
| 10 | relief; eliminating private class action recovery of |
| 11 | statutory penalties and other forms of monetary relief |
| 12 | other than actual damages; providing monetary relief; |
| 13 | providing for availability of nonmonetary relief; creating |
| 14 | s. 774.02, F.S.; requiring a specified demand to cure |
| 15 | notice prior to filing a class action; providing for a |
| 16 | cure period; providing for inspection of goods or evidence |
| 17 | relevant to a claim; requiring that a plaintiff plead and |
| 18 | prove specified elements relating to the cure period; |
| 19 | providing specified defenses to a cause of action; |
| 20 | providing an effective date. |
| 21 |
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| 22 | Be It Enacted by the Legislature of the State of Florida: |
| 23 |
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| 24 | Section 1. Section 774.01, Florida Statutes, is created to |
| 25 | read: |
| 26 | 774.01 Capacity to sue.-- |
| 27 | (1)(a) In any action asserting the right to class action |
| 28 | status, the claimant class with capacity to sue shall be limited |
| 29 | to residents of this state at the time of the alleged |
| 30 | misconduct, except as provided in paragraph (b). |
| 31 | (b) Prior to issuance of the certification order, the |
| 32 | court may expand a class to include any nonresident whose claim |
| 33 | is recognized within the claimant's state of residence and is |
| 34 | not time barred, but whose rights cannot be asserted because the |
| 35 | claimant's state of residence lacks personal jurisdiction over |
| 36 | the defendant or defendants. In addition, the claimant class may |
| 37 | include nonresidents if the conduct giving rise to the claim |
| 38 | occurred in this state. |
| 39 | (2) Notwithstanding any law to the contrary, in order to |
| 40 | maintain a class action seeking monetary relief, the class must |
| 41 | allege and prove actual damages. In any such class action, the |
| 42 | monetary recovery shall be limited to the amount of actual |
| 43 | damages. Nothing in this section shall be construed to limit or |
| 44 | restrict the ability of the Attorney General to bring a class |
| 45 | action for the recovery of statutory penalties, if otherwise |
| 46 | authorized by law. However, class action claimants may seek to |
| 47 | obtain, if appropriate, nonmonetary relief, including injunctive |
| 48 | relief and orders or declaratory relief and orders or judgments |
| 49 | enjoining wrongful conduct, regardless of whether the class |
| 50 | action claimants can prove any actual monetary damages. Nothing |
| 51 | in this section or in s. 774.02 shall be construed to in any way |
| 52 | limit or restrict the availability of such nonmonetary relief. |
| 53 | Section 2. Section 774.02, Florida Statutes, is created to |
| 54 | read: |
| 55 | 774.02 Demand to cure notice; opportunity to cure.-- |
| 56 | (1) As a prerequisite to filing a lawsuit seeking class |
| 57 | action status, a complainant shall provide the person alleged to |
| 58 | have committed the alleged misconduct with a demand to cure |
| 59 | notice advising the person of the specific complaint in |
| 60 | reasonable detail and: |
| 61 | (a) If the complainant will seek damages, the amount of |
| 62 | the loss suffered by the complainant as a result of the alleged |
| 63 | misconduct. |
| 64 | (b) If the complainant will seek any nonmonetary relief, |
| 65 | the remedy the complainant is seeking. |
| 66 |
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| 67 | The required demand to cure notice must be provided in writing |
| 68 | and provided at least 60 days prior to filing suit. |
| 69 | (2) The complainant submitting the demand to cure notice |
| 70 | must state at the time of giving notice that the complainant |
| 71 | seeks to act on behalf of a class. No class action shall be |
| 72 | filed unless the person alleged to have committed the misconduct |
| 73 | is given the required demand to cure notice. |
| 74 | (3) During the 60-day period, the person provided with a |
| 75 | demand to cure notice may request in writing that the |
| 76 | complainant permit inspection of the goods or other evidence |
| 77 | relevant to the claim in a reasonable manner and at a reasonable |
| 78 | time and place. The complainant must grant any reasonable |
| 79 | request to inspect in order to satisfy the obligation to permit |
| 80 | a reasonable opportunity to cure. |
| 81 | (4) Any settlement by a complainant purporting to affect |
| 82 | the rights of any member of a putative class shall be approved |
| 83 | by a court of competent jurisdiction pursuant to applicable |
| 84 | federal or state rules of civil procedure. |
| 85 | (5) In addition to any requirements of the applicable |
| 86 | rules of civil procedure and the underlying action, when suit is |
| 87 | filed the plaintiff must plead and prove the following elements: |
| 88 | (a) That the plaintiff provided the defendant with the |
| 89 | required demand to cure notice. |
| 90 | (b) That the defendant failed to cure within the time |
| 91 | allowed. |
| 92 | (6) A defendant shall have an absolute defense in an |
| 93 | action seeking class action status if: |
| 94 | (a) The complainant did not provide the defendant with a |
| 95 | demand to cure notice; |
| 96 | (b) The complainant denied the defendant a reasonable |
| 97 | opportunity to inspect; or |
| 98 | (c) The defendant tendered to the complainant the damages |
| 99 | sought or the remedy proposed. |
| 100 | Section 3. This act shall take effect July 1, 2005. |