Virgin Islands Telemarketing
12A V.I.C. § 303, § 310, § 327 - § 336
Virgin Islands Code Annotated
TITLE TWELVE A Consumer Code (Chs. 1 — 8)
Chapter 6. Consumer Fraud and Deceptive Business Practices (§§ 301 — 336)
§ 303. Definitions
§ 310. Telemarketing; free trials
§ 327. Enforcement
§ 328. Remedies of the Department of Licensing and Consumer Affairs
§ 329. Assurance of voluntary compliance; settlements
§ 330. Powers of receiver
§ 331. Private right of action
§ 332. Recovery of costs
§ 333. Exemptions
§ 334. Waiver or modification
§ 335. Severability
§ 336. Statute of limitations
§ 303. Definitions
(a) “Advertisement” means any public offer of merchandise with the purpose of attracting the attention of the consumer, whether through the press, handbills or other publications, radio, television, or any other informative media.
(b) “Chain referral sale” means the provision or offer to provide a consumer a prize, discount, rebate, or other compensation as an inducement for a sale which requires the prospective consumer to give names of other prospective consumers to the seller, if earning the prize, discount, rebate, or other compensation is contingent upon a sale to one of the referred consumers.
(c) “Commissioner” means the Commissioner of the Department of Licensing and Consumer Affairs.
(d) “Consumer” means any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.
(e) “Deceptive business practice” means any false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind made in connection with the sale, lease, rental, or loan of consumer goods or services, or in the extension of consumer credit or in the collection of consumer debts which has the capacity, tendency or effect of deceiving or misleading consumers.
(f) “Department” means the Department of Licensing and Consumer Affairs.
(g) “Merchandise” means any article of commerce usually sold directly to the consumer.
(h) “Person” means any natural person or his legal representative, partnership, corporation, domestic or foreign, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof.
(i) “Pyramid sales scheme” means any plan or operation whereby a person in exchange for money or other thing of value acquires the opportunity to receive a benefit or thing of value which is primarily based upon the inducement of additional persons, by himself or others, regardless of number, to participate in the same plan or operation and is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers. For purposes of this subsection, “money or other thing of value” does not include payments made for sales demonstration equipment and materials furnished on a nonprofit basis for use in making sales and not for resale.
(j) “Sale” means a revenue transaction where goods or services are delivered to a customer in return for cash or a contractual obligation to pay.
(k) “Trade or commerce” means the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated.
(l) “Telemarketing” means a plan, program, or campaign that is conducted to induce the purchase of goods or services by use of one or more telephones and which involves calls to or from more than one consumer.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, pp. 34, 35.
§ 310. Telemarketing; free trials
(a) A person or entity that, by means of a telemarketing plan, program, or campaign, offers free goods or services to a Virgin Islands consumer on a trial basis and assesses a periodic fee or charge for the goods or services after the end of the free trial period, must send to the consumer who accepts the free goods or services an invoice that the consumer may use to pay the periodic fee or charge or indicate that the consumer no longer wishes to receive the goods or services after the end of the free trial period. The invoice must contain an address and telephone number the consumer may use to cancel the goods or services, if the consumer no longer wishes to receive the free goods or services after the end of the free trial period.
(b) Violation of this section constitutes an unlawful practice within the meaning of this chapter.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 38.
§ 327. Enforcement
The Department of Licensing and Consumer Affairs shall be responsible for the administration and enforcement of this chapter.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 40.
§ 328. Remedies of the Department of Licensing and Consumer Affairs
(a) The Department may bring:
(1) An action to obtain a declaratory judgment that an act or practice violates this chapter.
(2) An action to enjoin any person who has violated, is violating, or is otherwise likely to violate, this chapter.
(3) An action on behalf of one or more consumers for the actual damages caused by an act or practice in violation of this chapter. However, damages are not recoverable under this chapter against a retailer who has in good faith engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this chapter.
(4) A motion in the Superior Court to appoint a receiver; or
(5) Any other action provided by law.
(b) The Department may petition the Superior Court to impose a civil penalty in a sum not to exceed $50,000 against any person found by the court to have engaged in any method, act or practice declared unlawful under this chapter. If the court finds the method, act or practice to have been entered into with the intent to defraud, the court may impose a civil penalty in a sum not to exceed $50,000 per violation.
(c) A civil penalty imposed under subsection (b) must be paid to the Department of Finance who shall deposit the money in the Treasury of the Government of the Virgin Islands in a special fund designated the Consumer Protection Fund, established in title 33, chapter 111, section 3100o.
(d) If the Court finds a person to have engaged in any method, act, or practice declared unlawful under this chapter, and the violation was committed against a person 65 years of age or older, the court may impose an additional civil penalty not to exceed $10,000 for each violation.
(e) A civil penalty imposed under subsection (d) must be paid to the Department of Finance. The Department shall deposit the money in the Treasury of the Government of the Virgin Islands in a special fund designated the Elderly Victim Fund established in title 33, chapter 111, section 3100n.
(f) The Court shall consider the following in determining whether to impose a civil penalty under subsection (d):
(1) Whether the defendant's conduct was in willful disregard of the right of the person 65 years of age or older;
(2) Whether the defendant knew or should have known that the defendant's conduct was directed to a person 65 years of age or older;
(3) Whether the person 65 years of age or older was substantially more vulnerable to the defendant's conduct because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability, than other persons; and
(4) Any other factors the court considers appropriate.
(g) Any other actions as provided by law.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, pp. 40, 41.
§ 329. Assurance of voluntary compliance; settlements
The Commissioner may order mediation with respect to any method, act or practice found to be violative of this chapter from any person who has engaged in, is engaging in, or was about to engage in the method, act or practice. Evidence of a violation of a mediation agreement is prima facie evidence of a violation of this chapter in any subsequent proceeding brought by the Department against the alleged violator.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 41.
§ 330. Powers of receiver
(a) When a receiver is appointed by the court under this chapter, the receiver shall have the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, chooses in action, bills, notes and property of every description, derived by means of any practice declared to be illegal and prohibited by this chapter, including property with which the property has been mingled, if it cannot be identified in kind because of the commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court.
(b) Any person who has suffered damages as a result of the use or employment of any unlawful practices and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses.
(c) In the case of a partnership or business entity, the receiver shall settle the estate and distribute the assets under the direction of the court. The court has jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, pp. 41, 42.
§ 331. Private right of action
Any person or business that is injured by a deceptive trade practice may bring a class action to protect the rights of Virgin Islands consumers for compensatory, consequential, punitive and equitable damages. To protect the rights of Virgin Islands consumers and businesses, if a jury makes a finding of compensatory and/or consequential damages, these damages shall be trebled. Individual reliance is not required in a consumer class action: the standard of a deceptive business practice is an act which misrepresents, deceives, or unfairly influences a reasonable and objective consumer.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 42; amended Oct. 15, 2013, No. 7525, § 1(2.)(a.), Sess. L. 2013, p. 130.
§ 332. Recovery of costs
The court may award to a prevailing party, as part of the judgment, a sum equal to the aggregate amount of costs and expenses, including reasonable attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the prevailing attorney for, or in connection with, the prosecution of the action.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 42.
§ 333. Exemptions
Nothing in this chapter applies to any of the following:
(a) Actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this territory or the United States;
(b) Acts done by the publisher, owner, agent, or employee of a newspaper, periodical or radio or television station in the publication or dissemination of an advertisement, when the owner, agent or employee did not have knowledge of the false, misleading or deceptive character of the advertisement, did not prepare the advertisement, or did not have a direct financial interest in the sale or distribution of the advertised product or service;
(c)
(1) The communication of any false, misleading or deceptive information, provided by the seller of real estate located in the Virgin Islands, by a real estate salesman or broker licensed under The Real Estate Brokers and Salesmen Act, title 27 Virgin Islands Code § 421 et seq., unless the salesman or broker knows of the false, misleading or deceptive character of such information.
(2) This subsection is effective as to any communication, whenever occurring;
(d) Claims seeking damages for conduct that results in bodily injury, death, or damage to property other than the property that is the subject of the practice claimed to be unlawful. This subsection applies to causes of action filed on or after its effective date.
(e)
(1) The communication of any false, misleading, or deceptive information by an insurance producer, registered firm, or limited insurance representative, as those terms are defined in the title 22 Virgin Islands Code, or by an insurance agency or brokerage house concerning the sale, placement, procurement, renewal, binding, cancellation of, or terms of any type of insurance or any policy of insurance unless the insurance producer has actual knowledge of the false, misleading, or deceptive character of the information. This provision shall be effective as to any communications, whenever occurring.
(2) This subsection applies to all causes of action that accrue on or after the effective date of this chapter.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, pp. 42, 43.
§ 334. Waiver or modification
Any waiver or modification of the rights, provisions, or remedies of this chapter is void and unenforceable.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 43.
§ 335. Severability
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
History
—Added May 17, 2006, No. 6833, § 1, Sess. L. 2006, p. 43.
§ 336. Statute of limitations
The statute of limitations under this Chapter is governed by Title 5 Virgin Islands Code § 31(3)(B).
History
—Added Oct. 15, 2013, No. 7525, § 1(2.)(b.), Sess. L. 2013, p. 130.
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