Days before the end of its legislative session, the Colorado General Assembly passed HB-1289, which considerably broadens the scope and mandate of the Colorado Consumer Protection Agency (CCPA). The bill also raises serious questions about the potential for the government to overreach in such cases.
Specifically, the billlowers the requisite mental state that the government must prove to prosecute several “deceptive” trade practices from “knowingly” to “recklessly.” In addition, the bill increases per violation financial penalties 900 percent, from$2,000 to $20,000. Most concerning, however, is that the bill allows for the government to bring CCPA claims without the previous requirement that they impact the public in some material way.Presumably in response to Richard Carrington’s appellate victory in Colorado v. Castle Law Group, the legislature amended the CCPA to state as follows: “An action under this Article 1 brought by the Attorney General or a district attorney does not require proof that a deceptive trade practice has a significant public impact.” Obviously, it is bizarre and arguably nonsensical that if a private individual files a CCPA lawsuit, then that person must prove that the defendant’s conduct has a significant public impact, but if the Attorney General – charged with protecting the public – files a CCPA lawsuit, it need not concern itself with whether the defendant’s conduct has any risk to the public. The upshot of this legislation, and likely the very purpose behind it, is to make it easier for the Attorney General to prevail on CCPA claims.