CHAPTER 12 - CONSUMER PROTECTION

 

ARTICLE 1 - IN GENERAL

 

40-12-101. Short title.

 

This act may be cited as the "Wyoming Consumer Protection Act."

 

40-12-102. Definitions.

 

(a) As used in this act:

 

(i) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association or any other legal entity;

 

(ii) "Consumer transactions" means the advertising, offering for sale, sale or distribution of any merchandise to an individual for purposes that are primarily personal, family or household;

 

(iii) "Documentary material" means the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, other tangible document or recording, reproductions of information stored magnetically, file layout, code conversion tables or computer programs to convert file to readable printout, wherever situated;

 

(iv) "Examination" of documentary material includes the inspection, study or copying of any such material, and the taking of testimony under oath or acknowledgement with respect to any such documentary material or copy thereof;

 

(v) "Advertisement" includes the attempt by publication, dissemination, solicitation or circulation, whether oral, visual, written or otherwise, and whether in person, by telephone or by any other means to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any merchandise;

 

(vi) "Merchandise" includes any service or any property, tangible or intangible, real, personal or mixed, or any other object, ware, good, commodity, or article of value wherever situated;

 

(vii) "Enforcing authority" means the attorney general of Wyoming;

 

(viii) "Cure" as applied to an unlawful deceptive trade practice as defined in W.S. 40-12-105 means either:

 

(A) To offer in writing to adjust or modify the consumer transaction to which the unlawful deceptive trade practice relates to conform to the reasonable expectations of the consumer generated by such unlawful deceptive trade practice and to perform such offer if accepted by the consumer; or

 

(B) To offer in writing to rescind such consumer transaction and to perform such offer if accepted by the consumer.

 

(ix) "Uncured unlawful deceptive trade practice" means an unlawful deceptive trade practice as defined in W.S. 40-12-105:

 

(A) With respect to which a consumer who has been damaged by the unlawful deceptive trade practice has given notice to the alleged violator pursuant to W.S. 40-12-109; and

 

(B) Either:

 

(I) No offer to cure has been made to such consumer within fifteen (15) days after such notice; or

 

(II) The unlawful deceptive trade practice has not been cured as to such consumer within a reasonable time after his acceptance of the offer to cure.

 

(x) "This act" means W.S. 40-12-101 through 40-12-114.

 

40-12-103. Unsolicited merchandise.

 

Unless otherwise agreed, when unsolicited merchandise is delivered to a person, he has a right to refuse such merchandise and is not obligated to return such merchandise to the sender. Such unsolicited merchandise is deemed an unconditional gift to the recipient, who may use it in any manner without any obligation to the sender. This section does not apply if there is evidence that the merchandise has been misdelivered, or if the delivered merchandise is offered as a good faith substitution for merchandise previously solicited by the recipient.

 

40-12-104. Home solicitation sales.

 

 

(a) For purposes of this section, "home solicitation sale" means the sale or lease of merchandise, other than farm equipment, for cash when the cash sales price, whether under a single sale or multiple sales, exceeds twenty-five dollars ($25.00) and in which the seller or a person acting for him engages in a personal solicitation of the sale at the residence of the buyer and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him. A personal solicitation of a sale at the residence of the buyer includes contact with the buyer in person or by telephone. "Home solicitation sale" does not include:

 

(i) A sale made pursuant to a preexisting revolving charge account;

 

(ii) A sale made subsequent to a personal contact or a telephone contact at the residence of the buyer but pursuant to negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale;

 

(iii) A sale made pursuant to a telephone solicitation when the seller offers a full refund and right of cancellation for at least ten (10) days after receipt of the merchandise and the right of refund and cancellation is communicated during the initial telephone solicitation and is conspicuously displayed with the merchandise; or

 

(iv) A sale in which a consumer acquires use of property under a rental-purchase agreement as defined in W.S. 40-19-102(a)(xi), with an initial period of one (1) week or less, by placing a telephone call to a merchant and by requesting that specific property be delivered to the consumer's residence or such other place as the consumer directs and such rental-purchase agreement is consummated at the consumer's residence.

 

(b) Except as hereinafter provided, in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with this part. Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase. Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid. Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale.

 

(c) The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency and:

 

(i) The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation; and

 

(ii) In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer.

 

(d) The period within which cancellation may occur pursuant to this section shall not commence until the buyer is furnished a copy of the completed, approved and accepted contract, is given the name and address to which the notice of cancellation should be sent and is provided with a written statement of his right of cancellation. The statement of the buyer's right of cancellation shall comply with W.S. 40-14-253(b).

 

(e) Except as hereinafter provided, within ten (10) days after a home solicitation sale has been cancelled:

 

(i) The seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness;

 

(ii) If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller, and if the seller fails to tender the goods as provided by this subsection, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement;

 

(iii) The seller may retain as a cancellation fee five percent (5%) of the cash price but not exceeding the amount of the cash down payment. If the seller fails to comply with an obligation imposed by this section, or if the buyer voids the sale on any ground independent of his right to cancel or revokes his offer to purchase, the seller is not entitled to retain a cancellation fee;

 

(iv) Until the seller has complied with the obligations imposed by this subsection, the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.

 

(f)Except as provided under subsection (e) of this section, within a reasonable time after a home solicitation sale has been cancelled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but he is not obligated to tender at any place other than his residence. If the seller fails to demand possession of the goods within thirty (30) days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them.

 

(g) The buyer has a duty to take reasonable care of the goods in his possession before cancellation or revocation and for thirty (30) days thereafter, during which time the goods are otherwise at the seller's risk.

 

(h) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to no compensation except the cancellation fee provided in this section.

 

40-12-105. Unlawful practices.

 

 

(a) A person engages in a deceptive trade practice unlawful under this act when, in the course of his business and in connection with a consumer transaction, he knowingly:

 

(i) Represents that merchandise has a source, origin, sponsorship, approval, accessories or uses it does not have;

 

(ii) Represents that he has a sponsorship, approval or affiliation he does not have;

 

(iii) Represents that merchandise is of a particular standard, grade, style or model, if it is not;

 

(iv) Represents that merchandise is available to the consumer for a reason that does not exist;

 

(v) Represents that merchandise has been supplied in accordance with a previous representation, if it has not; except that this subsection does not apply to merchandise supplied to the recipient by mistake or merchandise of equal or greater value supplied as a reasonably equivalent substitute for unavailable merchandise previously ordered by the recipient;

 

(vi) Represents that replacement or repair is needed, if it is not;

 

(vii) Makes false or misleading statements of fact concerning the price of merchandise or the reason for, existence of, or amounts of a price reduction;

 

(viii) Represents that a consumer transaction involves a warranty, a disclaimer of warranties, particular warranty terms, or other rights, remedies or obligations if the representation is false;

 

(ix) Represents that the consumer will receive a rebate, discount or other benefit as an inducement for entering into a consumer transaction in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if receipt of the benefit is contingent upon an event occurring after the consumer enters into the transaction;

 

(x) Advertises merchandise with intent not to sell it as advertised;

 

(xi) Advertises merchandise with intent not to supply reasonably expectable public demand, unless the advertisement discloses the limitation;

 

(xii) Represents that merchandise is original or new if he knows that it is deteriorated, damaged, altered, reconditioned, reclaimed, used or secondhand. For purposes of this subsection, the terms "original" or "new" include merchandise previously sold but returned within a reasonable time by the consumer for full credit if such merchandise is not damaged or deteriorated;

 

(xiii) Advertises under the guise of obtaining sales personnel when in fact the purpose of the advertisement is to sell merchandise to the sales personnel applicants;

 

(xiv) Employs "bait and switch" advertising which consists of an offer to sell merchandise which the seller does not intend to sell, which advertising is accompanied by one (1) or more of the following practices:

 

(A) Refusal to show the merchandise advertised;

 

(B) False disparagement in any respect of the advertised merchandise or the terms of sale;

 

(C) Requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised merchandise;

 

(D) Knowingly showing or demonstrating defective merchandise which is unusable or practicable for the purpose set forth in the advertisement;

 

(E) Accepting a deposit for the merchandise and subsequently charging the buyer for a higher priced item without his consent; or

 

(F) Willful failure to either make deliveries of the merchandise or to make a refund therefor.

 

(xv) Engages in unfair or deceptive acts or practices.

 

40-12-106. Restraining unlawful practices.

 

Whenever the enforcing authority has reasonable cause to believe that any person has engaged in, is engaging in, or is about to engage in any practice which is unlawful under W.S. 40-12-104 or 40-12-105, and that proceedings would be in the public interest, he may bring an action in the name of this state against such person to restrain by temporary restraining order or preliminary or permanent injunction the use of such practice, upon the giving of appropriate notice to that person. The notice must state generally the relief sought and must be served in accordance with the Wyoming Rules of Civil Procedure. Before commencing any action, the enforcing authority shall give the person against whom proceedings are contemplated a reasonable opportunity to show why proceedings should not be instituted. The action may be brought in the district court of the county in which the person resides or has his principal place of business or in the district court of Laramie county, Wyoming. The district court may issue temporary restraining orders or preliminary or permanent injunctions, in accordance with the principles of equity, to restrain and prevent violations of this act. The court may make such additional orders or judgments as are necessary to compensate identifiable persons for actual damages or restoration of money or property, real or personal, which may have been acquired by means or any act or practice restrained. The remedies provided by this section, W.S. 40-12-108 and 40-12-111 shall be the exclusive remedies for violations of this act.

 

40-12-107. Assurances of voluntary compliance.

 

The enforcing authority may accept written assurance of voluntary compliance with respect to any practice believed to be violative of W.S. 40-12-105 from any person who is engaged or is about to engage in such practice. Such assurance is not considered an admission of violation for any purpose. Proof of failure to comply with the assurance of voluntary compliance is prima facie evidence of a violation of this act. Matters closed by virtue of the acceptance of an assurance of voluntary compliance may at any time be reopened by the enforcing authority for further proceedings in the public interest, pursuant to W.S. 40-12-106.

 

40-12-108. Private remedies.

 

 

(a) A person relying upon an uncured unlawful deceptive trade practice may bring an action under this act for the damages he has actually suffered as a consumer as a result of such unlawful deceptive trade practice.

 

(b) Any person who is entitled to bring an action under subsection (a) of this section on his own behalf against an alleged violator of this act for damages for an unlawful deceptive trade practice may bring a class action against such person on behalf of any class of persons of which he is a member and which has been damaged by such unlawful deceptive trade practice, subject to and pursuant to the Wyoming Rules of Civil Procedure governing class actions, except as herein expressly provided. If the court determines that actual damages have been suffered by reason of the unlawful deceptive trade practice, the court shall award reasonable attorney's fees to the plaintiffs in a class action under this subsection, provided that such fees shall be determined by the amount of time reasonably expended by the attorney for the plaintiffs and not by the amount of the judgment. Any monies or property recovered in a class action under this subsection which cannot, with due diligence, be restored to consumers within one (1) year after judgment becomes final shall be returned to the party depositing the same.

 

40-12-109. Limitation of actions.

 

No action may be brought under this act, except under W.S. 40-12-108, unless the consumer bringing the action gives within the following time limits notice in writing to the alleged violator of the act, (a) within one (1) year after the initial discovery of the unlawful deceptive trade practice, (b) within two (2) years following such consumer transaction, whichever occurs first, and unless the unlawful deceptive trade practice becomes an uncured unlawful deceptive trade practice as defined in this act. The notice required under this section shall state fully the nature of the alleged unlawful deceptive trade practice and the actual damage suffered therefrom. No action may be brought under this act, except under W.S. 40-12-108, unless said action is initiated within one (1) year after the furnishing of notice as required under this section.

 

40-12-110. Exemptions.

 

 

(a) Nothing in this act shall apply to:

 

(i) Acts or practices required or permitted by state or federal law, rule or regulation or judicial or administrative decision;

 

(ii) Acts or practices by the publisher, owner, agent or employee of a newspaper, periodical, radio or television station or any other person without knowledge of the deceptive character of the advertisement in the publication or dissemination of an advertisement supplied by another.

 

40-12-111. Violations involving older persons or persons with disabilities; civil penalty.

 

(a) As used in this section:

 

(i) "Person with disabilities" means any person who has a mental or educational impairment which substantially limits one (1) or more major life activities;

 

(ii) "Major life activities" means functions associated with the normal activities of independent daily living such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

 

(iii) "Mental or educational impairment" means:

 

(A) Any mental or psychological disorder or specific learning disability;

 

(B) Any educational deficiency which substantially affects a person's ability to read and comprehend the terms of any contractual agreement entered into.

 

(iv) "Older person" means a person who is over sixty (60) years of age.

 

(b) Any person who willfully uses, or has willfully used, a method, act or practice in violation of this act which victimizes or attempts to victimize an older person or a person with disabilities, and commits such violation when the person knew or should have known that the conduct was unfair or deceptive, shall make restitution or reimbursement to the older person or person with disabilities including reasonable attorney fees and costs, and, in addition, is liable for a civil penalty of up to fifteen thousand dollars ($15,000.00) for each violation recoverable by the office of the attorney general.

 

40-12-112. Investigative powers of enforcing authority.

 

(a) If, by inquiry by the enforcing authority or as a result of complaints, the enforcing authority has probable cause to believe that a person has engaged in, or is engaging in, an act or practice that violates this act, investigators designated by the Wyoming attorney general may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence. Within five (5) days, excluding weekends and legal holidays, after the service of a subpoena or at any time before the return date specified therein, whichever is longer, the party served may file in the district court in the county in which the party resides or in which the party transacts business, or in the district court for the first judicial district of Wyoming, and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available under this act or upon service of a subpoena in a civil action. The subpoena shall inform the party served of the party's rights under this subsection.

 

(b) If matter that the enforcing authority seeks to obtain by subpoena is located outside the state, the person subpoenaed may make it available to the enforcing authority to examine the matter at the place where it is located. The enforcing authority may designate representatives, including officials of the state in which the matter is located, to inspect the matter on its behalf, and the enforcing authority may respond to similar requests from officials of other states.

 

(c) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the enforcing authority may apply to the district court for an order compelling compliance.

 

(d) The enforcing authority may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate the individual, be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which the individual is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against the individual in any criminal investigation or proceeding.

 

(e) Any person upon whom a subpoena is served pursuant to this section shall comply with the terms thereof unless otherwise provided by order of the court. Any person who fails to appear with the intent to avoid, evade or prevent compliance in whole or in part with any investigation under this act or who removes from any place, conceals, withholds, mutilates, alters or destroys, or by any other means falsifies any documentary material in the possession, custody or control of any person subject to the subpoena, or knowingly conceals any relevant information with the intent to avoid, evade or prevent compliance is liable for a civil penalty of not more than five thousand dollars ($5,000.00), reasonable attorney's fees and costs.

 

(f) Whenever criminal or civil intelligence, investigative information or any other information held by any state or federal agency is available to the enforcing authority on a confidential or a similarly restricted basis, the enforcing authority, in the course of the investigation of any violation of this act, may obtain and use the information. Any intelligence or investigative information that is confidential or exempt under W.S. 16-4-201 through 16-4-205 retains its status as confidential or exempt.

 

40-12-113. Civil penalties.

 

(a) The enforcing authority, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than five thousand dollars ($5,000.00) from any person who violates the terms of a permanent injunction issued under W.S. 40-12-106.

 

(b) For purposes of this section, the court issuing an injunction shall retain jurisdiction, and the cause shall be continued.

 

(c) Except as provided in W.S. 40-12-111, any person or agent or employee of the person, who willfully uses, or has willfully used, a method or act, in violation of this act, is liable for a civil penalty of not more than ten thousand dollars ($10,000.00) for each violation. Willful violations occur when the person knew or should have known that the person's conduct was unfair or deceptive. This civil penalty may be recovered in any action brought under this act by the enforcing authority or the enforcing authority may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The enforcing authority or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the unlawful act or practice. If civil penalties are assessed in any litigation, the enforcing authority is entitled to reasonable attorney's fees and costs.

 

40-12-114. Effect on other remedies.

 

This act shall not prohibit actions under other statutory or common-law provisions against conduct or practices similar to those declared to be unlawful by W.S. 40-12-105. However, the remedies provided in this act are the exclusive remedies for actions brought pursuant to this act.

 

ARTICLE 2 - PROMOTIONAL ADVERTISING OF PRIZES

 

40-12-201. Definitions.

 

 

(a) As used in this article:

 

(i) "Prize" means a gift, award or other item or service of value;

 

(ii) "Prize notice" means a notice given to an individual in this state that satisfies all of the following:

 

(A) Is or contains a representation that the individual has been selected or may be eligible to receive a prize;

 

(B) Conditions receipt of a prize on a payment from the individual or requires or invites the individual to make a contact to learn how to receive the prize or to obtain other information related to the notice.

 

(iii) "Prize notice" does not include any of the following:

 

(A) A notice given at the request of the individual;

 

(B) A notice informing the individual that he has been awarded a prize as a result of his actual prior entry in a game, drawing, sweepstakes or other contest, if the individual is awarded the prize stated in the notice.

 

(iv) "Solicitor" means a person who represents to an individual that the individual has been selected or may be eligible to receive a prize;

 

(v) "Sponsor" means a person on whose behalf a solicitor gives a prize notice;

 

(vi) "Verifiable retail value" of a prize means:

 

(A) A price at which the solicitor or sponsor can demonstrate that a substantial number of the prizes have been sold by a person other than the solicitor or sponsor in the trade area in which the prize notice is given; or

 

(B) If the solicitor or sponsor is unable to satisfy subparagraph (A) of this paragraph, no more than one and five-tenths (1.5) times the amount the solicitor or sponsor paid for the prize.

 

40-12-202. Written prize notice required.

 

If a solicitor represents to an individual that the individual has been selected or may be eligible to receive a prize, the solicitor shall not request, and the solicitor or sponsor shall not accept, a payment from the individual in any form before the individual receives a written prize notice that contains all of the information required under W.S. 40-12-203(a) presented in the manner required under W.S. 40-12-203(b) through (f).

 

40-12-203. Delivery and contents of written prize notices.

 

 

(a) A written prize notice shall contain all of the following information presented in the manner required under subsections (b) through (f) of this section:

 

(i) The name and address of the solicitor and sponsor;

 

(ii) The verifiable retail value of each prize the individual has been selected or may be eligible to receive;

 

(iii) If the notice lists more than one (1) prize that the individual has been selected or may be eligible to receive, a statement of the odds the individual has of receiving each prize;

 

(iv) Any requirement or invitation for the individual to view, hear or attend a sales presentation in order to claim a prize, the approximate length of the sales presentation and a detailed description of the property or service that is the subject of the sales presentation. The description of the property or service shall include the price of the property or service, the size of the property, length of the service and any other information required to make an informed determination as to the value of the property or service;

 

(v) Any requirement that the individual pay shipping or handling fees or any other charges to obtain or use a prize;

 

(vi) If receipt of the prize is subject to a restriction, a statement that a restriction applies, a description of the restriction and a statement containing the location in the notice where the restriction is described; and

 

(vii) Any limitations on eligibility.

 

(b) The verifiable retail value and the statement of odds required in a written prize notice under paragraphs (a)(ii) and (iii) of this section shall be stated in immediate proximity to each listing of the prize in each place the prize appears on the written prize notice and shall be in the same size and boldness of type as the prize, and provided:

 

(i) The statement of odds shall include, for each prize, the total number of prizes to be given away and the total number of written prize notices to be delivered. The number of prizes and written prize notices shall be stated in Arabic numerals. The statement of odds shall be in the following form: ".... (number of prizes) out of .... written prizes notices"; and

 

(ii) The verifiable retail value shall be in the following form: "verifiable retail value: $....".

 

(c) If an individual is required to pay shipping or handling fees or any other charges to obtain or use a prize, the following statement shall appear in immediate proximity to each listing of the prize in each place the prize appears in the written prize notice and shall be in not less than ten (10) point boldface type: "YOU MUST PAY $.... IN ORDER TO RECEIVE OR USE THIS ITEM".

 

(d) The information required in a written prize notice under paragraph (a)(iv) of this section shall be on the first page of the written prize notice in not less than ten (10) point boldface type. The information required under paragraphs (a)(vi) and (vii) of this section shall be in not less than ten (10) point boldface type.

 

(e) If a written prize notice is given by a solicitor on behalf of a sponsor, the name of the sponsor shall be more prominently and conspicuously displayed than the name of the promoter.

 

(f) A solicitor or sponsor shall not do any of the following:

 

(i) Place on an envelope containing a written prize notice any representation that the person to whom the envelope is addressed has been selected or may be eligible to receive a prize;

 

(ii) Deliver a written prize notice that contains language, or is designed in a manner, that would lead a reasonable person to believe that it originates from a government agency, public utility, insurance company, consumer reporting agency, debt collector or law firm unless the written prize notice originates from that source;

 

(iii) Represent directly or by implication that the number of individuals eligible for the prize is limited or that an individual has been selected to receive a particular prize unless the representation is true.

 

40-12-204. Sales presentations.

 

 

(a) If a prize notice requires or invites an individual to view, hear or attend a sales presentation in order to claim a prize, the sales presentation shall not begin until the solicitor does all of the following:

 

(i) Informs the individual of the prize, if any, that has been awarded to the individual; and

 

(ii) If the individual has been awarded a prize, delivers to the individual the prize or the item selected by the individual under W.S. 40-12-205 if the prize is not available.

 

40-12-205. Prize award required; options if prize not available.

 

 

(a) A solicitor who represents to an individual in a written prize notice that the individual has been awarded a prize shall provide the prize to the individual unless the prize is not available. If the prize is not available, the solicitor shall provide the individual with any one (1) of the following items selected by the individual:

 

(i) Any other prize listed in the written prize notice that is available and that is of equal or greater value;

 

(ii) The verifiable retail value of the prize in the form of cash, a money order or a certified check;

 

(iii) A voucher, certificate or other evidence of obligation stating that the prize will be shipped to the individual within thirty (30) days at no cost to the individual.

 

(b) If a voucher, certificate or other evidence of obligation delivered under paragraph (a)(iii) of this section is not honored within thirty (30) days, the solicitor shall deliver to the individual the verifiable retail value of the prize in the form of cash, a money order or a certified check.� The sponsor shall make the payment to the individual if the solicitor fails to do so.

 

40-12-206. Penalties.

 

 

(a) Except as provided by subsection (b) of this section, any individual who violates this article is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment for not more than six (6) months, or both, for each violation.

 

(b) Whoever intentionally violates this article is guilty of a misdemeanor punishable by a fine of not more than ten thousand dollars ($10,000.00), imprisonment for not more than one (1) year, or both. A person intentionally violates this article if the violation occurs after the attorney general or a district attorney has notified the person by certified mail that the person is in violation of this article.

 

40-12-207. Enforcement.

 

 

(a) The attorney general shall investigate violations of this article.

 

(b) The attorney general or any district attorney may on behalf of the state:

 

(i) Bring an action for temporary or permanent injunctive or other relief in any court of competent jurisdiction for any violation of this article. The court may, upon entry of final judgment, award restitution when appropriate to any person suffering loss because of a violation of this article if proof of the loss is submitted to the satisfaction of the court;

 

(ii) Bring an action in any court of competent jurisdiction for the penalties authorized under W.S. 40-12-206.

 

40-12-208. Private action.

 

 

(a) In addition to any other remedies, a person suffering pecuniary loss because of a violation by another person of this article may bring an action in any court of competent jurisdiction and shall recover all of the following:

 

(i) The greater of five hundred dollars ($500.00) or twice the amount of the pecuniary loss;

 

(ii) Costs and reasonable attorney fees.

 

40-12-209. Exemptions.

 

The provisions of this article shall not apply to the sale or purchase, or solicitation or representation in connection therewith, of goods from a catalog or of books, recordings, video cassettes, periodicals and similar goods through a membership group or club which is regulated by the federal trade commission through a contractual plan or arrangement such as a continuity plan, subscription arrangement, or a single sale or purchase series arrangement under which the seller ships goods to a consumer who has consented in advance to receive the goods and the recipient of the goods is given the opportunity, after examination of the goods, to receive a full refund of charges for the goods or unused portion thereof, upon return of the undamaged goods or unused portion of the goods.

 

ARTICLE 3 - TELEPHONE SOLICITATION

 

40-12-301. Definitions.

 

(a) As used in this article:

 

(i) "Caller identification service" means a type of telephone service or system which allows telephone subscribers to see the telephone numbers from which incoming telephone calls are dialed;

 

(ii) "Consumer" means an actual or prospective purchaser, lessee or recipient of consumer goods or services;

 

(iii) "Consumer goods or services" means any real property or any tangible or intangible personal property or any services which are marketed and intended to be used for personal, family or household purposes, including, without limitation, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and timeshare estates;

 

(iv) "Doing business in this state" refers to businesses which conduct telephonic sales calls from a location in Wyoming or from other states or nations to consumers located in Wyoming;

 

(v) "Enforcing authority" means the Wyoming attorney general;

 

(vi) "Established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a seller or telephone solicitor and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the consumer regarding products or services offered by such seller or telephone solicitor which relationship has not been previously terminated by either party;

 

(vii) "Merchant" means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services;

 

(viii) "National do-not-call list" means the list maintained by the Telephone Preference Service of the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization;

 

(ix) "Telephonic sales call" means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes;

 

(x) "Telephone solicitor" means any natural person, business entity or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing devices;

 

(xi) "Unpublished cellular telephone number" means a cellular telephone number:

 

(A) That has not been requested by the subscriber to be published in any telephone directory or any list of telephone service subscribers; and

 

(B) Whose prefix or telephone number has been determined by the public service commission to be primarily for cellular telephone service.

 

(xii) "Unsolicited telephonic sales call" means a telephonic sales call other than a call made:

 

(A) In response to an express request of the person called;

 

(B) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the call;

 

(C) To any person with whom the telephone solicitor had an established business relationship; or

 

(D) By a telephone solicitor or merchant making less than two hundred twenty-five (225) unsolicited calls per year.

 

40-12-302. Telephone solicitations.

 

(a) Any telephone solicitor or merchant who makes an unsolicited telephonic sales call to a residential or mobile telephone number shall disclose at the outset of the conversation and in a clear and conspicuous manner to the person receiving the call, the following information:

 

(i) The name of the individual caller;

 

(ii) The identity of the telephone solicitor or merchant and a telephone number and address at which the telephone solicitor or merchant may be contacted;

 

(iii) That the purpose of the call is to sell consumer goods or services; and

 

(iv) The nature of the consumer goods or services.

 

(b) No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any residential, mobile or telephonic paging device telephone number more than sixty (60) days after the number for that telephone appears in the national do-not-call list. This subsection does not apply to any person who calls an actual or prospective seller or lessor of real property when the call is made in response to a yard sign or other form of advertisement placed by the seller or lessor.

 

(c) No telephone solicitor or merchant who makes an unsolicited telephonic sales call to the telephone line of a residential subscriber in this state shall knowingly utilize any method to block or otherwise circumvent the subscriber's use of a caller identification service.

 

(d) No telephone solicitor shall initiate any unsolicited telephonic sales call to a consumer before the hour of 8 a.m. or after 8 p.m. local time at the consumer's location.

 

(e) No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any unpublished cellular telephone number.

 

40-12-303. Automated sales calls.

 

(a) No telephone solicitor or merchant shall make or knowingly allow a telephonic sales call to be made if the call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.

 

(b) Subsection (a) of this section does not prohibit the use of an automated telephone dialing system with live messages if:

 

(i) The calls are made or messages given solely in response to calls initiated by the persons to whom the automatic calls or live messages are directed;

 

(ii) The telephone numbers selected for automatic dialing have been screened to exclude any telephone subscriber who is included on the national do-not-call list and any unlisted telephone number; or

 

(iii) The call is to a consumer with whom the caller had an established business relationship.

 

40-12-304. Investigation of complaints; enforcement; attorney's fees.

 

(a) The enforcing authority shall investigate any complaints received concerning violations of this article. If, after investigating any complaint, the enforcing authority finds that there has been a willful violation of this article, the enforcing authority may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor or merchant. The civil penalty imposed shall be as follows:

 

(i) For the first violation, not to exceed five hundred dollars ($500.00);

 

(ii) For the second violation, not to exceed two thousand five hundred dollars ($2,500.00);

 

(iii) For the third and subsequent violations, not to exceed five thousand dollars ($5,000.00) per violation.

 

(b) An action under this section may be brought in the district court of the county in which the telephone solicitor or merchant resides or had its principle place of business or in the district court of Laramie county Wyoming. The civil penalty provided under this section may be recovered in any action brought under this article by the enforcing authority, or the enforcing authority may terminate any investigation or action upon agreement by the telephone solicitor or merchant to pay a stipulated civil penalty. The enforcing authority or the court may waive any civil penalty if the telephone solicitor or merchant has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.

 

(c) In any civil litigation resulting from a transaction involving a violation of this article, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive reasonable attorney's fees and costs from the nonprevailing party.

 

(d) The remedies provided by this section are not exclusive and shall not preclude the imposition of any other relief or criminal penalties provided by law.

 

(e) It shall be an affirmative defense to an action brought by an enforcing authority for a violation of W.S. 40-12-302(b) that the person called a consumer listed on the national do-not-call list as a result of a good faith error.

 

40-12-305. Notice of activity and consent to service of process.

 

Each telephone solicitor or merchant making unsolicited telephonic sales calls and doing business in this state shall file with the attorney general of this state a statement giving notice of this fact and designating the secretary of state of this state its agent for service of process, unless a lawful resident is designated as agent for service of process, for any alleged violation of this article. The written notice shall further set forth the intention of the telephone solicitor or merchant to abide by the provisions of this article. Compliance with this section shall not subject any telephone solicitor or merchant to the provisions or consequences of any other statute of this state.

 

ARTICLE 4 - COMMERCIAL ELECTRONIC MAIL

 

40-12-401. Definitions.

 

(a) As used in this article:

 

(i) "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged or intends to engage in any practice that violates this article;

 

(ii) "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement;

 

(iii) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered;

 

(iv) "Enforcing authority" means the Wyoming attorney general;

 

(v) "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows or consciously avoids knowing that the person initiating the transmission is engaged or intends to engage in any act or practice that violates this article;

 

(vi) "Interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions;

 

(vii) "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy;

 

(viii) "Service provider" means an entity offering the transmission, routing or providing of connections for digital online communications between or among points specified by a user, of material of the user's choosing, without modification to the content of the material sent or received.

 

40-12-402. Sending unpermitted or misleading electronic mail prohibited.

 

(a) No person may initiate the transmission, conspire with another to initiate the transmission or assist the transmission of a commercial electronic mail message from a computer located in Wyoming or to an electronic mail address that the sender knows or has reason to know is held by a Wyoming resident, or to an address that the sender knows or has reason to know is located in a state or other jurisdiction with laws similar to this state's laws regarding commercial electronic mail, that:

 

(i) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

 

(ii) Contains false or misleading information in the subject line.

 

(b) For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Wyoming resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.

 

(c) For purposes of this article, a service provider does not assist in the transmission of a commercial electronic mail message in violation of this article if:

 

(i) The activity which violates this article was not directed by the service provider or its agent;

 

(ii) The service provider does not receive a financial benefit directly attributable to the violation of this article by one (1) of its customers; and

 

(iii) The service provider does not provide the equipment or complete management of systems found to have an open mail relay.

 

40-12-403. Investigation of complaints; enforcement; attorney's fees.

 

(a) The enforcing authority shall investigate any complaints received concerning violations of this article. If, after investigating any complaint, the enforcing authority finds that there has been a violation of this article, the enforcing authority may bring an action to impose a civil penalty and to seek other relief, including injunctive relief. The civil penalty imposed shall be as follows:

 

(i) For the first violation, not to exceed five hundred dollars ($500.00);

 

(ii) For the second violation, not to exceed two thousand five hundred dollars ($2,500.00);

 

(iii) For the third and subsequent violations, not to exceed five thousand dollars ($5,000.00) per violation.

 

(b) An action under this section may be brought in the district court of the county in which a commercial electronic mail message that violates this article has been received or in the district court of Laramie county, Wyoming. The civil penalty provided under this section may be recovered in any action brought under this article by the enforcing authority, or the enforcing authority may terminate any investigation or action upon agreement with the person violating this article to pay a stipulated civil penalty.

 

(c) In any civil litigation resulting from a transaction involving a violation of this article, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive reasonable attorney's fees and costs from the nonprevailing party.

 

(d) The remedies provided by this section are not exclusive and shall not preclude the imposition of any other relief or criminal penalties provided by law.

 

40-12-404. Immunity from liability for blocking of commercial electronic mail by interactive computer service.

 

(a) An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this article.

 

(b) No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of this article.

 

ARTICLE 5 - CREDIT FREEZE REPORTS

 

40-12-501. Definitions.

 

(a) As used in this act:

 

(i) "Breach of the security of the data system" means unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal identifying information maintained by a person or business and causes or is reasonably believed to cause loss or injury to a resident of this state. Good faith acquisition of personal identifying information by an employee or agent of a person or business for the purposes of the person or business is not a breach of the security of the data system, provided that the personal identifying information is not used or subject to further unauthorized disclosure;

 

(ii) "Consumer" means any person who is utilizing or seeking credit for personal, family or household purposes;

 

(iii) "Consumer reporting agency" means any person whose business is the assembling and evaluating of information as to the credit standing and credit worthiness of a consumer, for the purposes of furnishing credit reports, for monetary fees and dues to third parties;

 

(iv) "Credit report" means any written or oral report, recommendation or representation of a consumer reporting agency as to the credit worthiness, credit standing or credit capacity of any consumer and includes any information which is sought or given for the purpose of serving as the basis for determining eligibility for credit to be used primarily for personal, family or household purposes;

 

(v) "Creditor" means the lender of money or vendor of goods, services or property, including a lessor under a lease intended as a security, rights or privileges, for which payment is arranged through a credit transaction, or any successor to the right, title or interest of any such lender or vendor, and an affiliate, associate or subsidiary of any of them or any director, officer or employee of any of them or any other person in any way associated with any of them;

 

(vi) "Financial institution" means any person licensed or chartered under the laws of any state or the United States as a bank holding company, bank, savings and loan association, credit union, trust company or subsidiary thereof doing business in this state;

 

(vii) "Personal identifying information" means the first name or first initial and last name of a person in combination with one (1) or more of the following data elements when either the name or the data elements are not redacted:

 

(A) Social security number;

 

(B) Driver's license number or Wyoming identification card number;

 

(C) Account number, credit card number or debit card number in combination with any security code, access code or password that would allow access to a financial account of the person;

 

(D) Tribal identification card; or

 

(E) Federal or state government issued identification card.

 

(viii) "Redact" means alteration or truncation of data such that no more than five (5) digits of the data elements provided in subparagraphs (vii)(A) through (D) of this subsection are accessible as part of the personal information;

 

(ix) "Security freeze" means a notice placed in a consumer's credit report, at the request of the consumer, that prohibits the credit rating agency from releasing the consumer's credit report or any information from it relating to an extension of credit or the opening of a new account, without the express authorization of the consumer;

 

(x) "Substitute notice" means:

 

(A) An electronic mail notice when the person or business has an electronic mail address for the subject persons;

 

(B) Conspicuous posting of the notice on the website page of the person or business if the person or business maintains one; and

 

(C) Publication in applicable local or statewide media.

 

(xi) "This act" means W.S. 40-12-501 through 40-12-511.

 

(b) "Personal identifying information" as defined in paragraph (a)(vii) of this section does not include information, regardless of its source, contained in any federal, state or local government records or in widely distributed media that are lawfully made available to the general public.

 

40-12-502. Computer security breach; notice to affected persons.

 

(a) An individual or commercial entity that conducts business in Wyoming and that owns or licenses computerized data that includes personal identifying information about a resident of Wyoming shall, when it becomes aware of a breach of the security of the system, conduct in good faith a reasonable and prompt investigation to determine the likelihood that personal identifying information has been or will be misused. If the investigation determines that the misuse of personal identifying information about a Wyoming resident has occurred or is reasonably likely to occur, the individual or the commercial entity shall give notice as soon as possible to the affected Wyoming resident. Notice shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement and consistent with any measures necessary to determine the scope of the breach and to restore the reasonable integrity of the computerized data system.

 

(b) The notification required by this section may be delayed if a law enforcement agency determines in writing that the notification may seriously impede a criminal investigation.

 

(c) Any financial institution as defined in 15 U.S.C. 6809 or federal credit union as defined by 12 U.S.C. 1752 that maintains notification procedures subject to the requirements of 15 U.S.C. 6801(b)(3) and 12 C.F.R. Part 364 Appendix B or Part 748 Appendix B, is deemed to be in compliance with this section if the financial institution notifies affected Wyoming customers in compliance with the requirements of 15 U.S.C. 6801 through 6809 and 12 C.F.R. Part 364 Appendix B or Part 748 Appendix B.

 

(d) For purposes of this section, notice to consumers may be provided by one (1) of the following methods:

 

(i) Written notice;

 

(ii) Electronic mail notice;

 

(iii) Substitute notice, if the person demonstrates:

 

(A) That the cost of providing notice would exceed ten thousand dollars ($10,000.00) for Wyoming-based persons or businesses, and two hundred fifty thousand dollars ($250,000.00) for all other businesses operating but not based in Wyoming;

 

(B) That the affected class of subject persons to be notified exceeds ten thousand (10,000) for Wyoming-based persons or businesses and five hundred thousand (500,000) for all other businesses operating but not based in Wyoming; or

 

(C) The person does not have sufficient contact information.

 

 

(iv) Substitute notice shall consist of all of the following:

 

(A) Conspicuous posting of the notice on the Internet, the World Wide Web or a similar proprietary or common carrier electronic system site of the person collecting the data, if the person maintains a public Internet, the World Wide Web or a similar proprietary or common carrier electronic system site; and

 

(B) Notification to major statewide media. The notice to media shall include a toll-free phone number where an individual can learn whether or not that individual's personal data is included in the security breach.

 

(e) Notice required under subsection (a) of this section shall include:

 

(i) A toll-free number:

 

(A) That the individual may use to contact the person collecting the data, or his agent; and

 

(B) From which the individual may learn the toll-free contact telephone numbers and addresses for the major credit reporting agencies.

 

(f) The attorney general may bring an action in law or equity to address any violation of this section and for other relief that may be appropriate to ensure proper compliance with this section, to recover damages, or both. The provisions of this section are not exclusive and do not relieve an individual or a commercial entity subject to this section from compliance with all other applicable provisions of law.

 

(g) Any person who maintains computerized data that includes personal identifying information on behalf of another business entity shall disclose to the business entity for which the information is maintained any breach of the security of the system as soon as practicable following the determination that personal identifying information was, or is reasonably believed to have been, acquired by an unauthorized person. The person who maintains the data on behalf of another business entity and the business entity on whose behalf the data is maintained may agree which person or entity will provide any required notice as provided in subsection (a) of this section, provided only a single notice for each breach of the security of the system shall be required. If agreement regarding notification cannot be reached, the person who has the direct business relationship with the resident of this state shall provide notice subject to the provisions of subsection (a) of this section.

 

40-12-503. Security freeze.

 

(a) Except as provided in W.S. 40-12-505, a consumer may place a security freeze on the consumer's credit report by:

 

(i) Making a request to a consumer reporting agency in writing by certified mail; and

 

(ii) Providing proper identification.

 

(b) If a security freeze is in place, a consumer reporting agency may not release a consumer's credit report or information derived from the credit report to a third party that intends to use the information to determine a consumer's eligibility for credit or the opening of a new account without prior authorization from the consumer.

 

(c) Notwithstanding subsection (b) of this section, a consumer reporting agency may communicate to a third party requesting a consumer's credit report that a security freeze is in effect on the consumer's credit report. If a third party requesting a consumer's credit report in connection with the consumer's application for credit is notified of the existence of a security freeze under this subsection, the third party may treat the consumer's application as incomplete.

 

(d) Upon receiving a request from a consumer under subsection (a) of this section, the consumer reporting agency shall:

 

(i) Place a security freeze on the consumer's credit report within five (5) business days after receiving the consumer's request;

 

(ii) Send a written confirmation of the security freeze to the consumer within ten (10) business days after placing the security freeze; and

 

(iii) Provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorizations for removal or temporary lift of the security freeze.

 

(e) A consumer reporting agency shall require proper identification of the consumer requesting to place, remove, or temporarily lift a security freeze.

 

(f) A consumer reporting agency shall develop a contact method to receive and process a consumer's request to place, remove or temporarily lift a security freeze. The contact method shall include:

 

(i) A postal address;

 

(ii) An electronic contact method chosen by the consumer reporting agency, which may include the use of fax, Internet or other electronic means; and

 

(iii) The use of telephone in a manner that is consistent with any federal requirements placed on the consumer reporting agency.

 

(g) A security freeze placed under this section may be removed or temporarily lifted only in accordance with W.S. 40-12-504.

 

40-12-504. Permanent removal or temporary lift of security freeze; requirements and timing.

 

(a) A consumer reporting agency may remove a security freeze from a consumer's credit report only if:

 

(i) The consumer makes a material misrepresentation of fact in connection with the placement of the security freeze and the consumer reporting agency notifies the consumer in writing before removing the security freeze; or

 

(ii) The consumer reporting agency receives the consumer's request through a contact method established and required in accordance with W.S. 40-12-503(f) and the consumer reporting agency receives the consumer's proper identification and other information sufficient to identify the consumer including the consumer's personal identification number or password.

 

(b) A consumer reporting agency shall temporarily lift a security freeze upon receipt of:

 

(i) The consumer's request through the contact method established by the consumer reporting agency;

 

(ii) The consumer's proper identification and other information sufficient to identify the consumer including the consumer's personal identification number or password;

 

(iii) A specific designation of the period of time for which the security freeze is to be lifted; and

 

(iv) The consumer reporting agency receives the payment of any fee required under W.S. 40-12-506.

 

(c) A consumer reporting agency shall temporarily lift a security freeze from a consumer's credit report within:

 

(i) Three (3) business days after the business day on which the consumer's request to temporarily lift the security freeze is received by the consumer reporting agency through the contact method developed by the consumer reporting agency as required under W.S. 40-15-503(f); or

 

(ii) On or after September 1, 2008, within fifteen (15) minutes after the consumer's request is received by the consumer reporting agency through the electronic contact method developed by the consumer reporting agency as required under W.S. 40-12-503(f) or the use of telephone, during normal business hours and includes the consumer's proper identification and correct personal identification number or password.

 

(d) A consumer reporting agency shall permanently remove a security freeze from a consumer's credit report within three (3) business days after the business day on which the consumer's request is received by the consumer reporting agency through the contact method developed by the agency to receive such requests as required under W.S. 40-12-503(f).

 

(e) A consumer reporting agency need not temporarily lift a security freeze within the time provided in subsection (c) of this section if:

 

(i) The consumer fails to meet the requirements of subsection (b) of this section; or

 

(ii) The consumer reporting agency's ability to temporarily lift the security freeze within fifteen (15) minutes is prevented by:

 

(A) An act of God, including fire, earthquakes, hurricanes, storms or similar natural disaster or phenomena;

 

(B) Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations or similar occurrence;

 

(C) Operational interruption, including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failures inhibiting response time or similar disruption;

 

(D) Governmental action, including emergency orders or regulations, judicial or law enforcement action or similar directives;

 

(E) Regularly scheduled maintenance, during other than normal business hours, of, or updates to, the consumer reporting agency's systems;

 

(F) Commercially reasonable maintenance of, or repair to, the consumer reporting agency's systems that is unexpected or unscheduled; or

 

(G) Receipt of a removal request outside of normal business hours.

 

40-12-505. Exceptions.

 

(a) Notwithstanding W.S. 40-12-503, a consumer reporting agency may furnish a consumer's credit report to a third party if:

 

(i) The purpose of the credit report is to:

 

(A) Use the credit report for purposes permitted under 15 U.S.C. 1681b(c);

 

(B) Review the consumer's account with the third party, including for account maintenance or monitoring, credit line increases or other upgrades or enhancements;

 

(C) Collect on a financial obligation owed by the consumer to the third party requesting the credit report;

 

(D) Collect on a financial obligation owed by the consumer to another person; or

 

(E) The third party requesting the credit report is a subsidiary, affiliate, agent, assignee or prospective assignee of the person holding the consumer's account or to whom the consumer owes a financial obligation.

 

(b) The consumer's request for a security freeze does not prohibit the consumer reporting agency from disclosing the consumer's credit report for other than credit related purposes consistent with the definition of credit report in W.S. 40-12-501(a).

 

(c) The following types of credit report disclosures by consumer reporting agencies to third parties are not prohibited by a security freeze:

 

(i) The third party does not use the credit report for the purpose of serving as a factor in establishing a consumer's eligibility for credit;

 

(ii) The release is pursuant to a court order, warrant or subpoena requiring release of the credit report by the consumer reporting agency;

 

(iii) The third party is a child support agency, or its agent or assignee, acting under Part D, Title IV of the Social Security Act or a similar state law;

 

(iv) The third party is the federal department of health and human services or a similar state agency, or its agent or assignee, investigating Medicare or Medicaid fraud;

 

(v) The purpose of the credit report is to investigate or collect delinquent taxes, assessments or unpaid court orders and the third party is:

 

(A) The federal internal revenue service;

 

(B) A state taxing authority;

 

(C) The department of transportation, division of motor vehicles;

 

(D) A county, municipality, or other entity with taxing authority;

 

(E) A federal, state or local law enforcement agency; or

 

(F) The agent or assignee of any entity listed in this paragraph.

 

(vi) The third party is administering a credit file monitoring subscription to which the consumer has subscribed; or

 

(vii) The third party requests the credit report for the sole purpose of providing the consumer with a copy of the consumer's credit report or credit score upon the consumer's request.

 

(d) The security freeze provisions of W.S. 40-12-503 do not apply to:

 

(i) A consumer reporting agency, the sole purpose of which is to resell credit information by assembling and merging information contained in the database of another consumer reporting agency and that does not maintain a permanent database of credit information from which a consumer's credit report is produced;

 

(ii) A deposit account information service company that issues reports concerning account closures based on fraud, substantial overdrafts, automated teller machine abuse or similar information concerning a consumer to a requesting financial institution for the purpose of evaluating a consumer's request to create a deposit account;

 

(iii) A check services or fraud prevention services company that issues:

 

(A) Reports on incidents of fraud; or

 

(B) Authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers or similar methods of payment.

 

(iv) A consumer reporting agency, with respect to its database of files that consist entirely of public records and is used solely for one (1) or more of the following:

 

(A) Criminal record information;

 

(B) Tenant screening;

 

(C) Employment screening; or

 

(D) Fraud prevention or detection.

 

(v) A database or file which consists solely of information adverse to the interests of the consumer including, but not limited to, criminal record information which is used for fraud prevention or detection, tenant screening, employment screening or any purpose permitted by the Fair Credit Reporting Act, 15 U.S.C. 1681b;

 

(vi) A person to the extent the person offers fraud prevention services which provide reports on incidents of fraud or reports used primarily in the detection or prevention of fraud; or

 

(vii) Setting or adjusting of a rate, adjusting a claim or underwriting for insurance purposes.

 

(e) Nothing in this article prohibits a person from obtaining, aggregating or using information lawfully obtained from public records in a manner that does not otherwise violate this article.

 

40-12-506. Fees for security freeze.

 

(a) Except as provided in subsection (b) of this section, a consumer reporting agency may charge a reasonable fee not to exceed ten dollars ($10.00) to a consumer for each placing, temporary lifting or removing of a security freeze.

 

(b) A consumer reporting agency may not charge a fee for placing, temporarily lifting or removing a security freeze if:

 

(i) The consumer is a victim of identity theft as defined by W.S. 6-3-901; and

 

(ii) The consumer provides the consumer reporting agency with a valid copy of a police report or police case number documenting the identity fraud.

 

40-12-507. Changes to information in a credit report subject to a security freeze.

 

(a) If a credit report is subject to a security freeze, a consumer reporting agency shall notify the consumer who is the subject of the credit report within thirty (30) days if the consumer reporting agency changes their information concerning the consumer's:

 

(i) Name;

 

(ii) Date of birth;

 

(iii) Social security number; or

 

(iv) Address.

 

(b) Notwithstanding subsection (a) of this section, a consumer reporting agency may make technical modifications to information in a credit report that is subject to a security freeze without providing notification to the consumer. Technical modifications under this subsection include:

 

(i) The addition or subtraction of abbreviations to names and addresses; and

 

(ii) Transpositions or corrections of incorrect numbering or spelling.

 

(c) When providing notice of a change of address under subsection (a) of this section, the consumer reporting agency shall provide notice to the consumer at both the new address and the former address.

 

40-12-508. Violations; penalties.

 

(a) If a consumer reporting agency intentionally or negligently violates a valid security freeze by releasing credit information that has been placed under a security freeze, the affected consumer is entitled to:

 

(i) Notification within five (5) business days following the agency's discovery, or notification from another source, of the release of the information. The notification under this paragraph shall include specificity as to the information released and the third party recipient of the information;

 

(ii) Notification that the consumer may file a complaint with the federal trade commission and the state attorney general.

 

(b) If a consumer reporting agency intentionally or negligently violates a valid security freeze by releasing credit information that has been placed under a security freeze and fails to take steps to correct the release and fails to give the notification required under subsection (a) of this section, the affected consumer is entitled to, in a civil action against the consumer reporting agency, recover:

 

(i) Injunctive relief to prevent or restrain further violation of the security freeze;

 

(ii) A civil penalty in an amount not to exceed one thousand dollars ($1,000.00) plus any damages available under other civil laws; and

 

(iii) Reasonable expenses, court costs, investigative costs and attorney's fees.

 

(c) Each violation of the security freeze shall be counted as a separate incident for purposes of imposing penalties under this section.

 

40-12-509. Factual declaration of innocence after identity theft.

 

(a) A person who reasonably believes that he or she is the victim of identity theft as defined by W.S. 6-3-901 may petition a court, or the court, on its own motion or upon application of the prosecuting attorney, may move for an expedited judicial determination of his or her factual innocence, where the perpetrator of the identity theft was arrested for, cited for or convicted of a crime under the victim's identity, or where a criminal complaint has been filed against the perpetrator in the victim's name, or where the victim's identity has been mistakenly associated with a record of criminal conviction. Any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports or other material, relevant and reliable information submitted by the parties or ordered to be part of the record by the court. Where the court determines that the petition or motion is meritorious and that there is no reasonable cause to believe that the victim committed the offense for which the perpetrator of the identity theft was arrested, cited, convicted or subject to a criminal complaint in the victim's name, or that the victim's identity has been mistakenly associated with a record of criminal conviction, the court shall find the victim factually innocent of that offense. If the victim is found factually innocent, the court shall issue an order certifying this determination.

 

(b) After a court has issued a determination of factual innocence pursuant to subsection (a) of this section, the court may order the name and associated personal identifying information contained in court records, files and indexes accessible by the public deleted, sealed or labeled to show that the data is impersonated and does not reflect the defendant's identity.

 

(c) Upon making a determination of factual innocence, the court shall provide the consumer written documentation of the order.

 

(d) A court that has issued a determination of factual innocence pursuant to this section may at any time vacate that determination if the petition, or any information submitted in support of the petition, is found to contain any material misrepresentation or fraud.

 

(e) The supreme court shall develop a form for use in issuing an order pursuant to this section.

 

(f) The attorney general shall establish and maintain a data base of individuals who have been victims of identity theft and that have received determinations of factual innocence. The attorney general shall provide a victim of identity theft or his authorized representative access to the database in order to establish that the individual has been a victim of identity theft. Access to the database shall be limited to criminal justice agencies, victims of identity theft and individuals and agencies authorized by the victims.

 

(g) The attorney general shall establish and maintain a toll free number to provide access to information under subsection (f) of this section.

 

(h) In order for a victim of identity theft to be included in the database established pursuant to subsection (f) of this section, he shall submit to the attorney general a court order obtained pursuant to this section, a full set of fingerprints and any other information prescribed by the attorney general.

 

(j) Upon receiving information pursuant to subsection (h) of this section, the attorney general shall verify the identity of the victim against any driver's license or other identification record maintained by the department of transportation, division of motor vehicles.