40-12-106.

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.